People v. Deptula, 373 P.2d 430 (Cal. 1962). · Go Syfert
People v. Deptula, 373 P.2d 430 (Cal. 1962). Cases Citing This Book View Copy Cite
Quick Summary

A person who enters a building with the intent to commit larceny is guilty of burglary regardless of whether they had express or implied permission to enter.

A defendant who was the manager of a bowling alley entered the premises using his own key with the intent to steal money, killing a janitor in the process. The defendant argued that his entry did not constitute burglary because he had express or implied permission to enter the building. The court held that under the settled interpretation of the burglary statute, a person who enters a building with the intent to commit larceny is guilty of burglary even if express or implied permission to enter has been granted to them personally or as a member of the public. The evidence sufficiently supported a finding of first-degree murder.

99 citation events (13 in the last 25 years) across 12 distinct courts.
Treatment trajectory · 1963 → 2026 · click a year to view as-of
1963 1994 2026
Cited for
58 Cal. 2d at 228 Defining burglary despite permission to enter a building13 citing casesthe settled interpretation of the statute is that one who enters a room or building with intent to commit larceny is guilty of burglary even though express or implied permission to enter has been given to him personally or as a member of the public1 citing court put it this way · passage not found verbatim in the opinion (75%)
  • People v. Riccardi, 281 P.3d 1 (Cal. 2012).published 4 cites
    (the settled interpretation of the statute is that one who enters a room or building with intent to commit larceny is guilty of burglary even though express or implied permission to enter has been given to him personall…)
  • People v. Frye, 959 P.2d 183 (Cal. 1998).published
    (People v. Talbot (1966) 64 Cal.2d 691, 700 [ 51 Cal.Rptr. 417 , 414 P.2d 633 ], overruled on other grounds in People v. Ireland (1969) 70 Cal.2d 522, 540 [ 75 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ].) Thus, a person who enters f…
  • People v. Salemme, 2 Cal. App. 4th 775 (Cal. Ct. App. 1992).published 2 cites
    (E.g., People v. Sears (1965) 62 Cal.2d 737, 746 [ 44 Cal.Rptr. 330 , 401 P.2d 938 ]; People v. Deptula (1962) 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ]; People v. Brittain (1904) 142 Cal. 8, 10 [ 75 P. 314 ]; People v. Edward…
  • People v. Andrew I., 230 Cal. App. 3d 572 (Cal. Ct. App. 1991).partially published 2 cites
    No possessory right in a parental residence is implied by this duty of financial support.” (In re Richard M. (1988) 205 Cal.App.3d 7, 15 [ 252 Cal.Rptr. 36 ].) 1 Furthermore, even if Scott had implied permission to enter his mother’s home,…
  • People v. Collins, 722 P.2d 173 (Cal. 1986).published 2 cites
    Code, § 1042, subd. (d).) In both cases the parties must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record. [23] The act is no less turpid — indeed, it…
  • People v. Nunley, 168 Cal. App. 3d 225 (Cal. Ct. App. 1985).published
    (People v. Gauze, supra, 15 Cal.3d at p. 713 ; People v. Sears (1965) 62 Cal.2d 737, 746 [ 44 Cal.Rptr. 330 , 401 P.2d 938 ]; People v. Deptula (1962) 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ]; People v. Brittain (1904) 142 Ca…
  • People v. Gauze, 542 P.2d 1365 (Cal. 1975).published
    (See, e.g., People v. Deptula (1962) 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ]; People v. Brittain (1904) 142 Cal. 8 [ 75 P. 314 ]; People v. Edwards (1971) 22 Cal.App.3d 598, 602 [ 99 Cal.Rptr. 516 ]; People v. Garrow (1955)…
  • People v. Edwards, 22 Cal. App. 3d 598 (Cal. Ct. App. 1971).published
    (People v. Deptula, 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ].) The entry need not constitute a trespass.
  • People v. Talbot, 414 P.2d 633 (Cal. 1966).published
    Section 459 of the Penal Code provides, in part: “Every person who enters any house, room ... or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. ’ ’ No breaking or use of force is requ…
  • People v. Huber, 225 Cal. App. 2d 536 (Cal. Ct. App. 1964).published
    (People v. Deptula, 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ]; People v. Michaels, 193 Cal.App.2d 194, 198 [ 13 Cal.Rptr. 900 ] ; People v. Beem, 192 Cal.App.2d 207, 211 [ 13 Cal.Rptr. 238 ]; Pen.
Show 3 more citing cases
  • People v. Azevedo, 218 Cal. App. 2d 483 (Cal. Ct. App. 1963).published
    (See People v. Deptula, 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ]; People v. Corral, 60 Cal.App.2d 66, 71 [ 140 P.2d 172 ]; People v. Guareno, 22 Cal.App.2d 82, 84 [ 70 P.2d 504 ].) The committing magistrate could reasonably d…
  • People v. Earl, 29 Cal. App. 3d 894 (Cal. Ct. App. 1973).published 3 cites
    Code, § 459; see People v. Deptula, 58 Cal.2d 225, 228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ].) “While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a c…
  • People v. Thomas, 235 Cal. App. 3d 899 (Cal. Ct. App. 1991).published 3 cites
    (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1254-1255 [ 263 Cal.Rptr. 183 ]; People v. Wilson (1989) 208 Cal.App.3d 611, 615 [ 256 Cal.Rptr. 422 ]; People v. Edwards (1971) 22 Cal.App.3d 598, 602 [ 99 Cal.Rptr. 516 ]; People v. Gaytan…
373 P.2d at 431 Consent to entry and larcenous intent as defense2 citing cases
  • United States v. Bryan Hiser, 532 F. App'x 648 (9th Cir. 2013).unpublished
    Under Nevada’s statute, consent to entry is not a defense, “so long as the defendant was shown to have made the entry with larcenous intent.” Thomas v. State, 94 Nev. 605 , 584 P.2d 674, 677 (1978) (citing favorably for support People v. D…
  • Thomas v. State, 584 P.2d 674 (Nev. 1978).published
    There is no basis for distinguishing this case, either on the ground that consent was express, rather than implied, see People v. Deptula, 373 P.2d 430, 431-32 (Cal. 1962); State v. Baker, 161 N.W.2d 864 (Neb. 1968), or that the specific i…
58 Cal. 2d at 226 applying Barry and 10 concluding a manager violated § 459 when he entered the business with the intent to commit a felony despite having his own set of keys to the business2 citing cases1 citing court put it this way
  • People v. Felix, 23 Cal. App. 4th 1385 (Cal. Ct. App. 1994).published
    (People v. Deptula (1962) 58 Cal.2d 225, 226-228 [ 23 Cal.Rptr. 366 , 373 P.2d 430 ] [manager of bowling alley burglarized the premises when he stole from the commercial safe, even though he had the keys to the business and had permission…
  • People v. Rodriguez, 25 Cal. App. 5th 1100 (Cal. Ct. App. 2018).published 4 cites
    (applying Barry and 10 concluding a manager violated § 459 when he entered the business with the intent to commit a felony despite having his own set of keys to the business)
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
The PEOPLE, Plaintiff and Respondent,
v.
JOHN JOSEPH DEPTULA, Defendant and Appellant
Crim. 7069.
California Supreme Court.
Jul 24, 1962.
Published opinion
373 P.2d 430
1962 Cal. LEXIS 255
Ellery E. Cuff, Public Defender, Maxwell M. Spencer and James L. McCormick, Deputy Public Defenders, for Defendant and Appellant., Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack E. Goertzen, Deputy Attorney General, for Plaintiff and Respondent.
Gibson.
Cited by 39 opinions  |  Published
GIBSON, C. J.

Defendant was charged by information with the murder of Roger Allen Mosser, and after a psychiatrist appointed by the court had reported that defendant was legally sane, he entered a plea of guilty, and waived a jury trial. The court determined that the murder was committed in the perpetration of both burglary and robbery and was therefore murder of the first degree. [1] The issue of penalty was then tried, and the court fixed defendant’s punishment at death. His motion for a new trial was denied, and the appeal comes to us automatically under the provisions of subdivision (b) of section 1239 of the Penal Code.

Defendant was employed by Donald Godard as a manager in connection with the operation of a bowling alley, café and bar, located in Los Angeles. His usual working hours were from 9 a. m. to 6 or 7 p. m. He was given keys to the bowling alley and was furnished with combinations to the safes. His duties included obtaining change from the “change safe” and placing “change bags” and “his deposit bag” in the safes at night, but he did not have permission to remove money from the premises.

Mosser worked at the bowling alley between 1 a. m. and 9 a. m., doing janitorial and maintenance work, taking care of any customers who were present after 1 a. m., and closing the[*227] doors and locking up after they had left. On July 16, 1961, about 9 a. m., defendant telephoned Godard from the bowling alley, telling him that the safes were open, the money was gone, and Mosser was not there. Godard went to investigate and found that approximately $1,760 was missing. Defendant informed Godard that he had called the police, and when they arrived defendant and Godard reported that it was their theory that Mosser had opened the safe, taken the money, and disappeared.

About two weeks later a forest ranger discovered a dismembered body, subsequently identified as Mosser’s, in a pit toilet in a recreational area in San Gabriel Canyon. Moneybags found with the body were identified as those used in the operation of the bowling alley. In the opinion of the doctor who performed an autopsy death was caused by “a blunt-force injury to the head with skull fractures and intracerebral hemorrhage. ’ ’

Defendant, when questioned by the police, made two free and voluntary confessions, and, although the confessions differed in some respects, defendant admitted in both of them that he had killed Mosser. Taken in the light most favorable to the prosecution, the confessions were to the effect that he went to the bowling alley about 5:30 a. m. on July 16, after having lost some money gambling. He owed money to his landlady and intended to “take the money from the bowling alley if A1 Mosser was asleep; if not, he would do some work. ’ ’ He used his own key to enter and, while standing by the door of the office, saw Mosser sleeping in a chair inside the office. He went to a place about 150 feet away where bowling pins were located, picked up one of the pins, came back to the office, and struck Mosser on the head with the pin. He walked across the office to the safes, leaving the pin on a desk nearby. After opening the safes he thought he observed Mosser move, and he picked up the pin, went over to Mosser, and again struck him on the head. Defendant removed the money remaining in the safes, wiped the safes and bowling pin clean with a towel, and returned the pin to the pit from which he had taken it. He took Mosser’s body to his apartment, where he kept it for several days and then dismembered the body and disposed of it.

The sole question presented is whether the evidence is sufficient to show that the murder was of the first degree. The trial court, as we have seen, determined that the murder was committed in the perpetration of burglary and of robbery.[*228] If its determination was warranted as to either of these felonies, it will, of course, be unnecessary to consider whether there is sufficient evidence with respect to the other.

Burglary is defined as follows: “Every person who enters any house, room ... or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Pen. Code, § 459.) Defendant contends that under a proper construction of the statute the entry must be a trespass in order to constitute an element of burglary and that he could permission to enter. However, the settled interpretation of the statute is that one who enters a room or building with intent to commit larceny is guilty of burglary even not be found guilty of the offense because, as manager, he had though express or implied permission to enter has been given to him personally or as a member of the public. (People v. Brittain, 142 Cal. 8, 9-10 [75 P. 314, 100 Am.St.Rep. 95]; People v. Lowen, 109 Cal. 381, 383 [42 P. 32]; People v. Barry, 94 Cal. 481, 482 [29 P. 1026]; People v. Wilson, 160 Cal.App.2d 606, 608 [325 P.2d 106]; People v. Garrow, 130 Cal.App.2d 75, 83 [278 P.2d 475]; People v. Owens, 98 Cal.App.2d 485, 486-487 [220 P.2d 575]; People v. Vitos, 62 Cal.App.2d 157, 159-160 [144 P.2d 393]; People v. Corral, 60 Cal.App.2d 66, 71 [140 P.2d 172]; People v. Sparks, 44 Cal.App.2d 748, 749-750 [112 P.2d 974]; People v. Ferns, 27 Cal.App. 285, 286-287 [149 P. 802].)

There is ample evidence to support the finding that Mosser was murdered by defendant and that the killing was committed in the perpetration of burglary.

The judgment and the order denying a new trial are affirmed.

Traynor, J., Schauer, J., Me Comb, J., Peters, J., and White, J., concurred.

1

Section 189 of the Penal Code provides: "All murder which ia perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree. ’ ’