## Facts

- Nicholas Andre Salemme, Sr. entered William Zimmerman’s residence on two separate occasions.
- Each time, Salemme entered intending to commit the felony of selling fraudulent, unqualified securities.
- Salemme succeeded both times in convincing Zimmerman to purchase the securities.
- Zimmerman invited Salemme into the home to discuss and purchase securities but did not know the securities were fraudulent and did not approve any criminal purpose.
- The prosecution charged Salemme with two counts of burglary under Penal Code section 459 based on the two entries and intended felonies.
- At the preliminary examination, the prosecution presented evidence supporting the entries and felonious intent.
- Salemme moved to set aside the burglary counts under Penal Code section 995, arguing burglary requires an entry posing danger of physical violence from an unauthorized intrusion.
- The trial court granted the motion and dismissed the burglary counts; the People appealed.

## Issues

1. Whether entry into a residence with intent to commit the felony of selling fraudulent, unqualified securities constitutes burglary under Penal Code section 459, even without an imminent threat of physical harm to the occupant.
2. Whether burglary liability is excluded when the occupant invited the defendant inside for a transaction, but did not know of or approve the defendant’s felonious intent.
3. Whether specific Corporations Code provisions governing securities fraud preclude prosecution under the more general burglary statute for the same conduct.

## Decision

- The Court of Appeal reversed the order setting aside the burglary counts and reinstated those charges.
- The court held that entering a structure listed in Penal Code section 459 with intent to commit any felony constitutes burglary.
- The court recognized two narrow exceptions: burglary does not occur when the entrant (1) has an unconditional possessory right to enter as an occupant, or (2) is invited in by an occupant who knows of and endorses the entrant’s felonious intent.
- Neither exception applied because Salemme had no possessory right to enter, and Zimmerman neither knew of nor approved the fraudulent purpose.
- The court rejected the argument that Corporations Code securities-fraud provisions displaced application of the burglary statute where burglary’s elements were independently met.

## Legal Principles

- Under Penal Code section 459, burglary is committed by entry into an enumerated structure with intent to commit grand or petit larceny or any felony.
- Burglary under section 459 is not limited to felonies involving violence or a likely violent confrontation; the statutory phrase “any felony” is controlling.
- An invited entry can still be burglarious if the invitation is not informed consent to the entrant’s felonious purpose.
- Two limitations exclude burglary despite felonious intent: (1) unconditional possessory right to enter as an occupant, or (2) invitation by an occupant who knows of and endorses the felonious intent.
- The existence of more specific criminal statutes addressing the intended felony does not bar burglary prosecution when the entry-with-felonious-intent elements are satisfied.

## Conclusion

The court held that a defendant commits burglary by entering a residence with intent to commit any felony, including securities fraud, unless the defendant has an unconditional possessory right to enter or the occupant knowingly and approvingly invites the felonious entry; because neither exception applied, dismissal of the burglary counts was reversed.


People v. Salemme, 2 Cal. App. 4th 775, 3 Cal. Rptr. 2d 398 (Cal. Ct. App. 1992)