## Facts

- Elliot Chunpong Kwok was indicted for attempted murder and two counts of first-degree residential burglary tied to two separate entries into Desli L.’s home: one in February 1995 and one in March 1995.
- At trial, the jury acquitted Kwok of attempted murder but convicted him of assault by means of force likely to produce great bodily injury and convicted him of both burglaries.
- The February entry involved Kwok using repair access to remove a lock mechanism, take it to a locksmith to make a duplicate key, keep the key, and reinstall the lock; he also covertly programmed a garage door opener to open the victim’s garage.
- The prosecution argued the February entry was unauthorized and was committed with intent to obtain and retain a duplicate key (to secure future entry) and to facilitate later felonies against the victim.
- The March entry (for which the burglary sentence was stayed) involved Kwok entering at night with items used to restrain and terrorize the victim, waiting for her, and attacking her.
- The trial court imposed a mitigated term for the assault, stayed punishment for the March burglary under Penal Code § 654, and imposed a consecutive term for the February burglary.
- On appeal, Kwok challenged only the February burglary conviction and its consecutive sentence.

## Issues

1. Whether sufficient evidence supported a first-degree residential burglary conviction for the February entry where Kwok removed and returned the lock but retained an unauthorized duplicate key and claimed he did not intend theft or any felony at the time of entry.
2. Whether Penal Code § 654 required the sentence for the February burglary to be stayed because it was part of the same course of conduct as the later March burglary and assault.

## Decision

- The Court of Appeal affirmed the February first-degree residential burglary conviction.
- The court held substantial evidence supported a finding that Kwok entered with intent to commit theft by obtaining and retaining an unauthorized duplicate key, impairing the victim’s exclusive control over access to her home.
- The court also held the jury could find Kwok entered with intent to commit (or facilitate) other felonies, even if the planned violent crimes were to occur later, because the relevant intent must exist at entry and need not involve immediate completion.
- The Court of Appeal affirmed the consecutive sentence for the February burglary, concluding Penal Code § 654 did not bar separate punishment.

## Legal Principles

- Burglary requires entry with intent to commit grand or petit larceny or any felony, and the intent must exist at the moment of entry; completion of the intended offense is not required.
- An intent at entry to prepare for, facilitate, or enable a later felony within the structure can satisfy the “intent to commit … any felony” element.
- Theft for burglary purposes may include appropriation of a property interest beyond physical removal of a tangible item, including interference with an owner’s exclusive control over access and security by making and retaining an unauthorized duplicate key.
- Penal Code § 654 bars multiple punishment only when offenses are part of an indivisible course of conduct with a single objective; separate punishment is permitted where acts occur at different times and reflect independent objectives or distinct risks of violent confrontation.

## Conclusion

The Court of Appeal upheld the February residential burglary conviction because the evidence supported a finding that Kwok entered intending to obtain and keep an unauthorized key (and to facilitate later felonies), and it upheld consecutive punishment because the February burglary was a separate criminal episode with its own objective and risk, not subject to Penal Code § 654.


People v. Kwok, 63 Cal. App. 4th 1236, 75 Cal. Rptr. 2d 40 (Ct. App. 1998)