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A Person Can be Convicted of Burglary of the Apartment Which He Leases: California Penal Code Section 459

Recently, a California appellate court has concluded that even if you have a signed lease to enter your apartment, that may not constitute a complete defense to burglary when there is sufficient evidence to conclude that the defendant did not have “an unconditional possessory interest” in the apartment rented with another person at the time of commission of burglary.(People v. Ulloa (Cal. App. 4 Dist., Dec. 21, 2009, No. E045880) 2009 WL 4895082.)

In Ulloa, the defendant was convicted of first degree residential burglary, receiving stolen property, and misdemeanor vandalism as a result of breaking into an apartment leased together with his then-wife, and taking her purse and $900 from her wallet following a domestic violence confrontation. On appeal, the defendant contended that he could not possibly commit burglary as a matter of law because he was a cotenant in the apartment where the alleged burglary occurred.

The appellate court has disagreed. Although both the defendant and the victim jointly signed an apartment lease, and the lease was in full force and effect at the time of the charged crimes occurred, the defendant did not own the property, and his possessory interest was not “unconditional” due to abandoning his unconditional possessory interest in the apartment by moving out.

The possessory right protected by section 459 (burglary statute) is the “right to exert control over property to the exclusion of others” or the “right to enter as the occupant of that structure.” However, because the defendant moved out of the apartment a few months before, did not have a key, and broke into the premises without the victim’s permission, the court has ruled it was sufficient evidence to support a finding that the defendant did not have an unconditional possessory interest in the apartment.

At Wallin & Klarich, our criminal defense burglary San Diego attorneys have years of experience defending those facing residential burglary charged as well as commercial burglary charges and we are prepared to handle every aspect of your case. Our attorneys will examine all circumstances of your case in order to provide you with the best possible defense. Call Wallin & Klarich 24 hours a day, 7 days a week for a case evaluation at 1-888-280-6839.

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