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Name: People v. Glazier
Case #: B214200
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 07/19/2010

The burglary-by-instrument doctrine applies when a tool is used to enter a building either as a prelude to physical entry, or to remove property, or to commit another felony. Appellant used a paint sprayer filled with gasoline and a 20-foot torch to start a fire in the crawl space of his neighbor’s house while he remained on his own property. Based on this act he was convicted of attempted first-degree burglary under the burglary-by-instrument doctrine. Appellant argued the conviction should be reversed because the doctrine did not apply under the facts of the case since he did not use the instrument to physically enter the residence, or remove property from within. The court acknowledged the California Supreme Court limited the burglary-by-instrument doctrine in People v. Davis (1998) 18 Cal.4th 712. But, the Davis court said it applied where the perpetrator uses a tool to enter a building either as a prelude to physical entry, or remove property, or to commit a felony. Here the 20-foot torch was inserted into the crawlspace to commit the crime of arson. The question used by the Davis court in limiting the burglary-by-instrument doctrine was whether the defendant’s entry was the type of entry the burglary statute was intended to prevent. In this case, the answer is, yes. The use of the tool violated the victims’ possessory interest in the crawlspace under their house.