What is the test for determining whether a defendant is guilty of burglary in the second degree?

California, United States of America


The following excerpt is from People v. Mitchell, 209 Cal.App.2d 312, 26 Cal.Rptr. 89 (Cal. App. 1962):

Defendant complains that the trial court instructed the jury that it must find defendant either not guilty or guilty of burglary in the second degree. Defendant contends that the matter of degree of burglary is a fact for the jury to consider. This is not always the case. (People v. Montalbano, 146 Cal.App.2d 624, 625, 304 P.2d 36.) There was no evidence that the building was inhabited or that defendant was armed at the time of burglary. The instruction was proper, in defendant's favor, and he has no reason to complain. The jury was fully and properly instructed.

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