To: Tracye K Pina

From: Sean J Reynolds

Title: Law 215 Legal Research Memorandum

We have been appointed to represent Eldon Canter in the case of United States v. Canter. Canter is
charged with one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).

On January 5 of this year, Mr. Canter robbed the First State Bank. He went into the bank and showed the
teller a homemade wooden model of a 9 mm Beretta handgun. He drilled a hole in the barrel end in an
attempt to make it look like a real Beretta.

The teller was so frightened that he only glanced at the wooden gun. He believed it was real. The teller
at the next window saw the replica and said she was pretty sure it was fake.No one else noticed
whether the wooden replica was real.

Please determine whether, in light of the facts of this case, there is sufficient evidence to support the
charge that Mr. Canter committed bank robbery by use of a “dangerous weapon.”

Statutory Law: 18 U.S.C. § 2113(a) & (d), Bank robbery and incidental crimes, provides:

**Statutory Definition**: According to 18 U.S.C. § 2113(d), a "dangerous weapon" is implied in the

context of bank robbery to be an object used to put in jeopardy the life of any person by force, violence,
or intimidation.

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person
or presence of another … any property or money or any other thing of value belonging to, or in
the care, custody, control, management, or possession of, a bank….
“Shall be fined under this title, imprisoned for not more than 20 years, or both.
Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and
(b) of this section, assaults any person, or puts in jeopardy the life of any person by use of a
dangerous weapon or device, shall be fined under this title or imprisoned not more than 25
years, or both.
Case Law: United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989) (d) if it is used in a
manner that puts victims in fear for their safety.

**Case Law Precedent**: The case of United States v. Martinez-Jimenez established that a toy gun can
be considered a "dangerous weapon" under 18 U.S.C. § 2113(d) if it is used in a manner that puts victims
in fear for their safety.

**Perception of Danger**: The perception of the weapon by the victims plays a crucial role in
determining its dangerousness. If the object, despite being non-functional or a replica, causes fear or
intimidation, it may fulfill the statutory definition of a dangerous weapon.

**Legal Analysis**: In light of the case law and statutory definition, the wooden replica wielded by Mr.
Canter could be considered a "dangerous weapon" if it was used in a way that caused the bank teller to
believe it was real and to feel intimidated or in danger.

- **Evidence Consideration**: The belief of the teller that the wooden gun was real, and the subsequent
fear experienced could be sufficient evidence to support the charge of armed bank robbery with a
dangerous weapon.
- **Defense Strategy**: The defense could argue that the wooden replica does not meet the criteria of a
dangerous weapon if it can be proven that Mr. Canter did not intend to intimidate or that the teller's
belief was not reasonable.
- **Jury's Role**: Ultimately, it would be up to a jury to decide whether

The wooden replica in Mr. Canter's case induced a sufficient level of fear to be considered a "dangerous
weapon" under the law.
- **Legal Outcome**: The determination of whether Mr. Canter's wooden replica constitutes a
"dangerous weapon" will significantly impact the potential penalties, including the length of
imprisonment if convicted.
 2

What is the penalty for robbery without the use of a dangerous weapon?

**Penalty for Bank Robbery (18 U.S.C. § 2113(a)) **: The penalty for bank robbery without the use of a
dangerous weapon, as defined under

18 U.S.C. § 2113(a), can result in imprisonment for up to 20 years and/or a fine.

- **Lesser Offenses**: If the amount taken does not exceed $1,000, the offense is considered a lesser
offense and can result in imprisonment for up to one year and/or a fine.

- **Aggravating Factors**: The presence of aggravating factors, such as the use of a dangerous weapon,
can increase The maximum penalty to 25 years of imprisonment.

- **Fine Amounts**: The fine for bank robbery without a dangerous weapon can be substantial, up to
$250,000, depending on the specifics of the case.

- **Federal Jurisdiction**: Bank robbery is a federal crime, and thus, the penalties are governed by
federal law, regardless of the state in which the crime occurred.

- **Probation and Parole**: Convicted individuals may also be subject to probation or parole, which
includes additional conditions and supervision following release from prison.

- **Restitution**: In addition to imprisonment and fines, offended

Shall be fined under this title, imprisoned for not more than 20 years, or both.

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the life of any person by use of a dangerous weapon
or device, shall be fined under this title or imprisoned not more than 25 years, or both.

Case Law: United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989) (d) if it is used in a manner that
puts victims in fear for their safety.

**Statutory Definition**: According to 18 U.S.C. § 2113(d), a "dangerous weapon" is implied in the

context of bank robbery to be an object used to put in jeopardy the life of any person by force, violence,
or intimidation.

**Case Law Precedent**: The case of United States v. Martinez-Jimenez established that a toy gun can
be considered a "dangerous weapon" under 18 U.S.C. § 2113(d) if it is used in a manner that puts victims
in fear for their safety.

**Perception of Danger**: The perception of the weapon by the victims plays a crucial role in
determining its dangerousness. If the object, despite being non-functional or a replica, causes fear or
intimidation, it may fulfill the statutory definition of a dangerous weapon.

**Legal Analysis**: In light of the case law and statutory definition, the wooden replica wielded by Mr.
Canter could be considered a "dangerous weapon" if it was used in a way that caused the bank teller to
believe it was real and to feel intimidated or in danger.

- **Evidence Consideration**: The belief of the teller that the wooden gun was real, and the subsequent
fear experienced could be sufficient evidence to support the charge of armed bank robbery with a
dangerous weapon.
- **Defense Strategy**: The defense could argue that the wooden replica does not meet the dangers
weapon if it can be proven that Mr. Canter did not intend to intimidate or that the teller's belief was not
reasonable.

- **Jury's Role**: Ultimately, it would be up to a jury to decide whether the wooden replica in Mr.
Canter's case induced a sufficient level of fear to be considered a "dangerous weapon" under the law.
 3

- **Legal Outcome**: The determination of whether Mr. Canter's wooden replica constitutes a
"dangerous weapon" will significantly impact the potential penalties, including the length of
imprisonment if convicted.

What is the penalty for robbery without the use of a dangerous weapon?

In Mr. Canter's situation, the wooden replica, although not a functional firearm, was crafted and
presented in a manner that caused at least one teller to believe it was a real handgun, which resulted in
intimidation. This factor could potentially satisfy the element of the statute requiring the use of a
dangerous weapon. However, the determination of whether the wooden replica is a dangerous weapon
may also consider the intent of Mr. Canter and the overall circumstances of the robbery. The fact that
another teller suspected the gun was fake and that no one else noticed the replica could be significant in
assessing the level of intimidation and perceived danger.

The court may also examine the physical characteristics of the replica and the context in which it was
displayed. If the replica was brandished in a manner that a reasonable person could believe it to be a real
firearm, this could further support the charge. Conversely, if the evidence suggests that the replica was
unlikely to be perceived as a real weapon, this could undermine the charge.

The subjective belief of the teller who thought the gun was real, along with the objective appearance of
the replica, will be central to the court's evaluation.

The question of sufficient evidence for the charge against Mr. Canter will rest on a detailed analysis of
the facts surrounding the incident, the characteristics of the wooden replica, and the reactions of the
bank employees. The prosecution must prove beyond a reasonable doubt that the wooden replica was
used in a manner that qualifies as a dangerous weapon under the statute. This will involve careful
consideration of both objective and subjective elements, as well as relevant precedents that interpret
the statutory language and define the contours of what constitutes a dangerous weapon in the context
of a bank robbery. The defense may argue that the replica did not constitute a dangerous weapon due to
its inability to cause actual harm, while the prosecution will focus on the perceived threat and the
intimidation experienced by the victims. The court's interpretation of these factors will be crucial in
determining the outcome of the charge against Mr. Canter.

The penalty for bank robbery in the United States, as defined under 18 U.S.C. § 2113, varies depending
on the specifics of the crime committed. Under subsection (a), if the robbery involves force, violence, or
intimidation, the perpetrator can be fined or face imprisonment for up to twenty years. If the robbery
includes an assault or puts someone's life in jeopardy using a dangerous weapon or device, the
imprisonment can extend up to twenty-five years under subsection (d). For lesser offenses, such as
taking and carrying away property or money not exceeding $1,000, the penalty can be a fine or
imprisonment for not more than one year. It is important to note that these penalties can be
compounded by additional charges related to robbery, such as use of a weapon, resulting in potentially
longer sentences and larger fines. The "federal" nature of these crimes means that the penalties are
severe and reflect the seriousness with which bank robbery is treated in the "United States legal
system".

The case of United States v. Martinez-Jimenez, while specifically addressing the use of a toy gun in a
bank robbery, has broader implications for cases involving real guns due to the legal interpretation of
what constitutes a "dangerous weapon" under 18 U.S.C. § 2113(d). In instances where real guns are
used, the statute's application is straightforward, as real guns are inherently dangerous weapons.
However, the Martinez-Jimenez decision is pivotal because it expands the definition to include items that
are not inherently dangerous but become so through their use in a manner that instills fear and can
provoke violence.

This interpretation aligns with the statute's intent to protect individuals from threats to their safety
during the commission of a robbery, regardless of whether the weapon is real or simulated.

Consequently, the precedent set by Martinez-Jimenez influences how courts view the severity of using
real guns in robberies, potentially leading to harsher sentences due to the clear and present danger they
represent. The case underscores the principle that the perception of danger can be as significant as
actual danger, thereby affecting the legal outcomes of cases involving real firearms where the threat to
life and safety is indisputable.
 4

The distinction between a toy gun and a real gun is primarily based on their construction, purpose, and
legal implications. Real guns are designed to fire live ammunition and are constructed from materials
that can withstand the pressures associated with firing bullets. They are typically made of metal and
have mechanisms for firing, reloading, and safety. Toy guns, on the other hand, are often made of plastic
or other non-metallic materials and are designed to replicate the appearance of real firearms without
the capability to discharge live ammunition. Legally, toy guns are required to have distinct markings, such
as an orange tip, to differentiate them from real firearms, although these can sometimes be altered or
removed, which can lead to dangerous situations.

In the context of legal scrutiny, as seen in cases like United States v. Martinez-Jimenez, the differentiation
between a "toy gun" and a "real gun" becomes crucial. The court's interpretation of a "dangerous
weapon" under the federal bank robbery statute extends to items that, while not inherently dangerous,
are used in a manner that instills fear and can provoke violence. This means that a toy gun, when used in
a robbery, can be treated with the same severity as a real gun because of the perceived threat it
represents.

Furthermore, the difficulty in distinguishing between toys and real guns, especially in high-stress
situations, has led to tragic outcomes and has been a point of debate and legislative action. Some states
have passed laws requiring toy guns to be brightly colored or have prominent fluorescent strips to
prevent such confusion. However, the effectiveness of these measures is debated, as modifications to
both real and toy guns can blur the lines of distinction.

In terms of safety, the resemblance of toy guns to real firearms poses significant risks, particularly to
children who may not grasp the gravity of the situation when handling such toys. Studies have shown
that most children cannot reliably distinguish between real and toy guns, which underscores the
importance of responsible storage and handling of all firearms, whether real or imitation, to prevent
accidents and misunderstandings.

Considering recent events and the ongoing public discourse on gun violence, there is a push for stricter
gun laws.

Public opinion is divided, with some advocating for more stringent regulations to enhance safety, while
others emphasize the importance of the constitutional right to bear arms. The legal implications of gun
ownership are thus not static; they evolve with shifting societal norms, legal interpretations, and
legislative changes.

It is crucial for gun owners to be aware of the laws applicable in their jurisdiction and to understand the
potential liabilities associated with gun ownership. Failure to comply with legal requirements can lead to
serious consequences, not only for the individual owner but also for the broader community. As such,
responsible gun ownership involves a commitment to understanding and adhering to the laws designed
to prevent gun violence and ensure the safety of all citizens.

The federal bank robbery statute, codified at 18 U.S.C. § 2113, outlines various offenses related to bank
robbery and associated crimes. Specifically, subsection (d) of this statute increases the penalties for bank
robbery when anyone's life is put in jeopardy by a dangerous weapon or device. The case of United
States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989), is a pivotal case that addressed the definition of
a "dangerous weapon" in the context of bank robbery. In this case, the defendant, Gilbert
Martinez-Jimenez, was convicted of armed bank robbery under 18 U.S.C. § 2113(a) and (d), even though
the "weapon" used was a toy gun. The court found that the use of a toy gun during the robbery put lives
in jeopardy because it instilled fear in the victims, which is congruent with the legislative intent of the
statute to deter actions that threaten physical safety during a robbery.

This case has been influential in subsequent cases involving toy guns, as it established that a toy gun can
be considered a "dangerous weapon" if it is used in a manner that endangers life or instills fear. For
instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed, affirming that a toy gun
fell within the meaning of a "dangerous weapon" under the federal bank robbery statute. The rationale
is that the use of a toy gun in a robbery creates similar risks to using an unloaded or inoperable genuine
gun, such as causing victims to experience greater apprehension, necessitating a more deliberate
response from law enforcement, and increasing the likelihood of an armed response, which in turn raises
the risk to physical security of all involved.
 5

The Martinez-Jimenez decision underscores the seriousness with which the federal legal system treats
bank robberies, regardless of whether the weapon used is real or fake. It reflects a broader legal
principle that the potential harm and the perceived threat during the commission of a crime can be just
as significant as actual harm. This principle is applied consistently across various jurisdictions, ensuring
that the punitive measures for bank robbery remain stringent to deter such crimes effectively.

The case serves as a precedent that has shaped the legal landscape regarding the use of toy guns in the
commission of crimes, particularly in the context of bank robberies, where the distinction between real
and fake weapons may not matter in terms of sentencing and conviction.

In summary, while toy guns are intended for play and imitation, their realistic design can lead to them
being perceived as real, with serious legal and safety consequences.

The differentiation between the two is critical, not only for legal definitions and the application of
statutes like 18 U.S.C. § 2113 but also for public safety and the prevention of potentially fatal
misunderstandings. The ongoing debate and legislative efforts aim to address these concerns by
enhancing the visual differences between toy and real guns, thereby aiding in their identification, and
reducing the risks associated with their confusion. Toy gun https://en.wikipedia.org/wiki/Toy_gun

This case has been influential in subsequent cases involving toy guns, as it established that a toy gun can
be considered a "dangerous weapon" if it is used in a manner that endangers life or instills fear. For
instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed, affirming that a toy gun
fell within the meaning of a "dangerous weapon" under the federal bank robbery statute. The rationale
is that the use of a toy gun in a robbery creates similar risks to using an unloaded or inoperable genuine
gun, such as causing victims to experience greater apprehension, necessitating a more deliberate
response from law enforcement, and increasing the likelihood of an armed response, which in turn raises
the risk to physical security of all involved.

The Martinez-Jimenez decision underscores the seriousness with which the federal legal system treats
bank robberies, regardless of whether the weapon used is real or fake. It reflects a broader legal
principle that the potential harm and the perceived threat during the commission of a crime can be just
as significant as actual harm. This principle is applied consistently across various jurisdictions, ensuring
that the punitive measures for bank robbery remain stringent to deter such crimes effectively. The case
serves as a precedent that has shaped the legal landscape regarding the use of toy guns in the
commission of crimes, particularly in the context of bank robberies, where the distinction between real
and fake weapons may not matter in terms of sentencing and conviction.

In summary, while toy guns are intended for play and imitation, their realistic design can lead to them
being perceived as real, with serious legal and safety consequences. The differentiation between the two
is critical, not only for legal definitions and the application of statutes like 18 U.S.C. § 2113 but also for
public safety and the prevention of potentially fatal misunderstandings. The ongoing debate and
legislative efforts aim to address these concerns by enhancing the visual differences between toy and
real guns, thereby aiding in their identification and reducing the risks associated with their confusion.

● Case Overview: Eldon Canter is charged with armed bank robbery under 18 U.S.C. § 2113(a) and
(d), using a wooden replica of a gun.

● Legal Definitions: A “dangerous weapon” is defined as an object that puts someone’s life in
jeopardy by force, violence, or intimidation.

● Case Law Precedent: United States v. Martinez-Jimenez established that a toy gun can be
considered a “dangerous weapon” if it causes fear for safety.

● Penalties: Bank robbery without a dangerous weapon can result in up to 20 years imprisonment;
with a dangerous weapon, up to 25 years.

The page also discusses the implications of the perception of danger and the role of the jury in
determining whether the wooden replica qualifies as a “dangerous weapon.”

What are some key factors that determine the penalties under 18 U.S. Code § 2113 for bank robbery
offenses?

Under 18 U.S. Code § 2113 for bank robbery offenses, some key factors that determine the penalties
include:
 6

● Amount Involved: The punishment may vary based on the amount stolen. For example, there are
distinctions in penalties for thefts under $100 compared to higher amounts stolen[5].

● Use of Force or Violence: Penalties may be more severe if force, violence, or threats were
involved in the commission of the bank robbery or related offense.

● Type of Crime: The severity of the offense, such as robbery, theft, or other criminal acts against
financial institutions, can influence the penalties imposed.

● Type of Financial Institution: The law applies to banks, credit unions, and savings and loan
associations. The penalties may be influenced by the specific type of institution targeted.

● Historical Context and Amendments: Previous legislative changes and amendments made to the
law over time could also impact the penalties under 18 U.S. Code § 2113.

These factors are crucial in determining the appropriate punishment for individuals involved in bank
robbery and related crimes as outlined in the statute.

Under California law, a "deadly weapon" is an instrument either designed to be lethal, or a dangerous
implement that can be used lethally.

A "dangerous weapon," on the other hand, is not necessarily always deadly.

The unloaded pistol, although not "deadly," is "dangerous," because it can still be used as a bludgeon.

The legislature has also focused on the reporting of weapons offenses since health practitioners are
required by law to report to law enforcement, both orally and in writing, any patient who has suffered a
wound from a knife, firearm, or other deadly weapon.

This article explains California Penal Code Section 245, which pertains to assault with a deadly weapon;
Section 417, which outlaws the brandishing or use of any deadly weapon other than a firearm; and
Section 12020, which proscribes the possession of weapons designed to be used primarily for
destructive or harmful purposes.

: Possession of Firearm, Ammunition, Destructive Device, or Dangerous Weapon (Probation and

Supervised Release Conditions)

Statutory Authority

Under 18 U.S.C. § 3563(b)(8), the court may provide that the defendant “refrain from possessing a
firearm, destructive device, or other dangerous weapon.”

Standard Condition Language

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous
weapon (i.e., anything that was designed or was modified for the specific purpose of causing bodily
injury or death to another person, such as nunchakus or tasers.

Purpose

● This condition serves the statutory sentencing purpose of public protection. 18 U.S.
● The federal bank robbery statute, codified at 18 U.S.C. § 2113, outlines various offenses related
to bank robbery and associated crimes. Specifically, subsection (d) of this statute increases the
penalties for bank robbery when the life of any person is put in jeopardy by the use of a
dangerous weapon or device. The case of United States v. §§§§§¶§§¶Martinez-Jimenez, 864 F.2d
664 (9th Cir. 1989), is a pivotal case that addressed the definition of a "dangerous weapon" in
the context of bank robbery. In this case, the defendant, Gilbert Martinez-Jimenez, was
convicted of armed bank robbery under 18 U.S.C. § 2113(a) and (d), despite the fact that the
"weapon" used was a toy gun. The court found that the use of a toy gun during the robbery put
lives in jeopardy because it instilled fear in the victims, which is congruent with the legislative
intent of the statute to deter actions that threaten physical safety during a robbery.
This case has been influential in subsequent cases involving toy guns, as it established that a toy
gun can be considered a "dangerous weapon" if it is used in a manner that endangers life or
instills fear. For instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed,
 7

affirming that a toy gun fell within the meaning of a "dangerous weapon" under the federal bank
robbery statute. The rationale is that the use of a toy gun in a robbery creates similar risks to
using an unloaded or inoperable genuine gun, such as causing victims to experience greater
apprehension, necessitating a more deliberate response from law enforcement, and increasing
the likelihood of an armed response, which in turn raises the risk to physical security of all
involved.
The Martinez-Jimenez decision underscores the seriousness with which the federal legal system
treats bank robberies, regardless of whether the weapon used is real or fake. It reflects a
broader legal principle that the potential harm and the perceived threat during the commission
of a crime can be just as significant as actual harm. This principle is applied consistently across
various jurisdictions, ensuring that the punitive measures for bank robbery remain stringent to
deter such crimes effectively. The case serves as a precedent that has shaped the legal landscape
regarding the use of toy guns in the commission of crimes, particularly in the context of bank
robberies, where the distinction between real and fake weapons may not matter in terms of
sentencing and conviction.
In summary, while toy guns are intended for play and imitation, their realistic design can lead to
them being perceived as real, with serious legal and safety consequences. The differentiation
between the two is critical, not only for legal definitions and the application of statutes like 18
U.S.C. § 2113 but also for public safety and the prevention of potentially fatal
misunderstandings. The ongoing debate and legislative efforts aim to address these concerns by
enhancing the visual differences between toy and real guns, thereby aiding in their identification
and reducing the risks associated with their confusion.

○ Case Overview: Eldon Canter is charged with armed bank robbery under 18 U.S.C. §
2113(a) and (d), using a wooden replica of a gun.

○ Legal Definitions: A “dangerous weapon” is defined as an object that puts someone’s life
in jeopardy by force, violence, or intimidation.

○ Case Law Precedent: United States v. Martinez-Jimenez established that a toy gun can be
considered a “dangerous weapon” if it causes fear for safety.

○ Penalties: Bank robbery without a dangerous weapon can result in up to 20 years

imprisonment; with a dangerous weapon, up to 25 years.

We have been appointed to represent Eldon Canter in the case of United States v. Canter. Canter is
charged with one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).

On January 5 of this year, Mr. Canter robbed the First State Bank. After he entered the bank, he
approached a teller and pulled from his pocket a crudely carved wooden replica of a 9 mm Beretta
handgun. He had carved the replica from a block of pinewood and stained it with a dark walnut wood
stain to make it look black. He drilled a hole in the barrel end in an attempt to make it look like a real
Beretta.

The teller was so frightened that he only glanced at the wooden gun. He believed it was real. The teller
at the next window looked at the replica and afterward stated that she was fairly certain at the time that
it was fake. No one else noticed whether the wooden replica was real.

Please determine whether, in light of the facts of this case, there is sufficient evidence to support the
charge that Mr. Canter committed bank robbery by use of a “dangerous weapon.”

Statutory Law: 18 U.S.C. § 2113(a) & (d), Bank robbery and incidental crimes, provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or
presence of another … any property or money or any other thing of value belonging to, or in the care,
custody, control, management, or possession of, a bank….

Shall be fined under this title, imprisoned for not more than 20 years, or both.

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the life of any person by use of a dangerous weapon
or device, shall be fined under this title or imprisoned not more than 25 years, or both.
 8

Case Law: United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989) (d) if it is used in a manner that
puts victims in fear for their safety.

**Statutory Definition**: According to 18 U.S.C. § 2113(d), a "dangerous weapon" is implied in the

context of bank robbery to be an object used to put in jeopardy the life of any person by force, violence,
or intimidation.

**Case Law Precedent**: The case of United States v. Martinez-Jimenez established that a toy gun can
be considered a "dangerous weapon" under 18 U.S.C. § 2113(d) if it is used in a manner that puts victims
in fear for their safety.

**Perception of Danger**: The perception of the weapon by the victims plays a crucial role in
determining its dangerousness. If the object, despite being non-functional or a replica, causes fear or
intimidation, it may fulfill the statutory definition of a dangerous weapon.

**Legal Analysis**: In light of the case law and statutory definition, the wooden replica wielded by Mr.
Canter could be considered a "dangerous weapon" if it was used in a way that caused the bank teller to
believe it was real and to feel intimidated or in danger.
- **Evidence Consideration**: The belief of the teller that the wooden gun was real, and the subsequent
fear experienced could be sufficient evidence to support the charge of armed bank robbery with a
dangerous weapon.
- **Defense Strategy**: The defense could argue that the wooden replica does not meet the criteria of a
dangerous weapon if it can be proven that Mr. Canter did not intend to intimidate or that the teller's
belief was not reasonable.
- **Jury's Role**: Ultimately, it would be up to a jury to decide whether

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the life of any person by use of a dangerous weapon
or device, shall be fined under this title or imprisoned not more than 25 years, or both.

Case Law: United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989) (d) if it is used in a manner that
puts victims in fear for their safety.

**Statutory Definition**: According to 18 U.S.C. § 2113(d), a "dangerous weapon" is implied in the

context of bank robbery to be an object used to put in jeopardy the life of any person by force, violence,
or intimidation.

**Case Law Precedent**: The case of United States v. Martinez-Jimenez established that a toy gun can
be considered a "dangerous weapon" under 18 U.S.C. § 2113(d) if it is used in a manner that puts victims
in fear for their safety.

**Perception of Danger**: The perception of the weapon by the victims plays a crucial role in
determining its dangerousness. If the object, despite being non-functional or a replica, causes fear or
intimidation, it may fulfill the statutory definition of a dangerous weapon.

**Legal Analysis**: In light of the case law and statutory definition, the wooden replica wielded by Mr.
Canter could be considered a "dangerous weapon" if it was used in a way that caused the bank teller to
believe it was real and to feel intimidated or in danger.

- **Evidence Consideration**: The belief of the teller that the wooden gun was real, and the subsequent
fear experienced could be sufficient evidence to support the charge of armed bank robbery with a
dangerous weapon.

- **Defense Strategy**: The defense could argue that the wooden replica does not meet the criteria of a
dangerous weapon if it can be proven that Mr. Canter did not intend to intimidate or that the teller's
belief was not reasonable.

- **Jury's Role**: Ultimately, it would be up to a jury to decide whether the wooden replica in Mr.
Canter's case induced a sufficient level of fear to be considered a "dangerous weapon" under the law.
 9

- **Legal Outcome**: The determination of whether Mr. Canter's wooden replica constitutes a
"dangerous weapon" will significantly impact the potential penalties, including the length of
imprisonment if convicted.

What is the penalty for robbery without the use of a dangerous weapon?

**Penalty for Bank Robbery (18 U.S.C. § 2113(a)) **: The penalty for bank robbery without the use of a
dangerous weapon, as defined under

18 U.S.C. § 2113(a), can result in imprisonment for up to 20 years and/or a fine.

- **Lesser Offenses**: If the amount taken does not exceed $1,000, the offense is considered a lesser
offense and can result in imprisonment for up to one year and/or a fine.

- **Aggravating Factors**: The presence of aggravating factors, such as the use of a dangerous weapon,
can increase the maximum penalty to 25 years of imprisonment.

- **Fine Amounts**: The fine for bank robbery without a dangerous weapon can be substantial, up to
$250,000, depending on the specifics of the case.

- **Federal Jurisdiction**: Bank robbery is a federal crime, and thus, the penalties are governed by
federal law, regardless of the state in which the crime occurred.

- **Probation and Parole**: Convicted individuals may also be subject to probation or parole, which
includes additional conditions and supervision following release from prison.
- **Restitution**: In addition to imprisonment, fines, and offender.

- **Legal Outcome**: The determination of whether Mr. Canter's wooden replica constitutes a
"dangerous weapon" will significantly impact the potential penalties, including the length of
imprisonment if convicted.

What is the penalty for robbery without the use of a dangerous weapon?

"Case law", has interpreted a dangerous weapon to include any object that, based on the manner of its
use or intended use, can cause death or serious bodily injury. The perception of the weapon by the
victim can also be a critical factor. In United States v. Martinez, the case of United States v.
Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989), the court was presented with the question of whether a
toy gun constitutes a "dangerous weapon" under the federal bank robbery statute, specifically 18 U.S.C.
§ 2113(d). The defendant, Gilbert Martinez-Jimenez, appealed his conviction following a bench trial on
one count of armed bank robbery, contending that the trial court erred in its conclusion that the toy gun
he wielded during the robbery was a "dangerous weapon." The Ninth Circuit Court of Appeals affirmed
the district court's judgment, holding that a toy gun can be considered a dangerous weapon within the
statute's meaning. The court reasoned that the use of a toy gun during a robbery creates similar risks to
those created by an unloaded or inoperable genuine gun, such as causing victims greater apprehension,
necessitating a more deliberate response from law enforcement, and increasing the likelihood of an
armed response from police or guards, which in turn raises the risk to the physical security of victims,
bystanders, and the perpetrators themselves. This decision aligns with the court's rationale in previous
cases, such as McLaughlin, where a toy gun was also deemed a "dangerous weapon" under the same
statute. The case highlights the legal principle that the perception of danger can be as impactful as actual
danger, particularly in the context of criminal law and the protection of public safety.

In Mr. Canter's situation, the wooden replica, although not a functional firearm, was crafted and
presented in a manner that caused at least one teller to believe it was a real handgun, which resulted in
intimidation. This factor could potentially satisfy the element of the statute requiring the use of a
dangerous weapon. However, the determination of whether the wooden replica is a dangerous weapon
may also consider the intent of Mr. Canter and the overall circumstances of the robbery. The fact that
another teller suspected the gun was fake and that no one else noticed the replica could be significant in
assessing the level of intimidation and perceived danger.

The court may also examine the physical characteristics of the replica and the context in which it was
displayed. If the replica was brandished in a manner that a reasonable person could believe it to be a real
 10

firearm, this could further support the charge. Conversely, if the evidence suggests that the replica was
unlikely to be perceived as a real weapon, this could undermine the charge.

The subjective belief of the teller who thought the gun was real, along with the objective appearance of
the replica, will be central to the court's evaluation.

The question of sufficiency, of evidence for the charge against Mr. Canter will rest on a detailed analysis
of the facts surrounding the incident, the characteristics of the wooden replica, and the reactions of the
bank employees. The prosecution must prove beyond a reasonable doubt that the wooden replica was
used in a manner that qualifies as a dangerous weapon under the statute. This will involve careful
consideration of both objective and subjective elements, as well as relevant precedents that interpret
the statutory language and define the contours of what constitutes a dangerous weapon in the context
of a bank robbery. The defense may argue that the replica did not constitute a dangerous weapon due to
its inability to cause actual harm, while the prosecution will focus on the perceived threat and the
intimidation experienced by the victims. The court's interpretation of these factors will be crucial in
determining the outcome of the charge against Mr. Canter.

The case of United States v. Martinez-Jimenez, while specifically addressing the use of a toy gun in a
bank robbery, has broader implications for cases involving real guns due to the legal interpretation of
what constitutes a "dangerous weapon" under 18 U.S.C. § 2113(d). In instances where real guns are
used, the statute's application is straightforward, as real guns are inherently dangerous weapons.
However, the Martinez-Jimenez decision is pivotal because it expands the definition to include items that
are not inherently dangerous but become so through their use in a manner that instills fear and can
provoke violence.

This interpretation aligns with the statute's intent to protect individuals from threats to their safety
during the commission of a robbery, regardless of whether the weapon is real or simulated.

Consequently, the precedent set by Martinez-Jimenez influences how courts view the severity of using
real guns in robberies, potentially leading to harsher sentences due to the clear and present danger they
represent. The case underscores the principle that the perception of danger can be as significant as
actual danger, thereby affecting the legal outcomes of cases involving real firearms where the threat to
life and safety is indisputable.

The distinction between a toy gun and a real gun is primarily based on their construction, purpose, and
legal implications. Real guns are designed to fire live ammunition and are constructed from materials
that can withstand the pressures associated with firing bullets. They are typically made of metal and
have mechanisms for firing, reloading, and safety. Toy guns, on the other hand, are often made of plastic
or other non-metallic materials and are designed to replicate the appearance of real firearms without
the capability to discharge live ammunition. Legally, toy guns are required to have distinct markings, such
as an orange tip, to differentiate them from real firearms, although these can sometimes be altered or
removed, which can lead to dangerous situations.

In the context of legal scrutiny, as seen in cases like United States v. Martinez-Jimenez, the differentiation
between a "toy gun" and a "real gun" becomes crucial. The court's interpretation of a "dangerous
weapon" under the federal bank robbery statute extends to items that, while not inherently dangerous,
are used in a manner that instills fear and can provoke violence. This means that a toy gun, when used in
a robbery, can be treated with the same severity as a real gun because of the perceived threat it
represents.

Furthermore, the difficulty in distinguishing between toys and real guns, especially in high-stress
situations, has led to tragic outcomes and has been a point of debate and legislative action. Some states
have passed laws requiring toy guns to be brightly colored or have prominent fluorescent strips to
prevent such confusion. However, the effectiveness of these measures is debated, as modifications to
both real and toy guns can blur the lines of distinction.

In terms of safety, the resemblance of toy guns to real firearms poses significant risks, particularly to
children who may not grasp the gravity of the situation when handling such toys. Studies have shown
that most children cannot reliably distinguish between real and toy guns, which underscores the
 11

importance of responsible storage and handling of all firearms, whether real or imitation, to prevent
accidents and misunderstandings.

Considering recent events and the ongoing public discourse on gun violence, there is a push for stricter
gun laws.

Public opinion is divided, with some advocating for more stringent regulations to enhance safety, while
others emphasize the importance of the constitutional right to bear arms. The legal implications of gun
ownership are thus not static; they evolve with shifting societal norms, legal interpretations, and
legislative changes.

It is crucial for gun owners to be aware of the laws applicable in their jurisdiction and to understand the
potential liabilities associated with gun ownership. Failure to comply with legal requirements can lead to
serious consequences, not only for the individual owner but also for the broader community. As such,
responsible gun ownership involves a commitment to understanding and adhering to the laws designed
to prevent gun violence and ensure the safety of all citizens.

The federal bank robbery statute, codified at 18 U.S.C. § 2113, outlines various offenses related to bank
robbery and associated crimes. Specifically, subsection (d) of this statute increases the penalties for bank
robbery when anyone's life is put in jeopardy by a dangerous weapon or device. The case of United
States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989), is a pivotal case that addressed the definition of
a "dangerous weapon" in the context of bank robbery. In this case, the defendant, Gilbert
Martinez-Jimenez, was convicted of armed bank robbery under 18 U.S.C. § 2113(a) and (d), even though
the "weapon" used was a toy gun. The court found that the use of a toy gun during the robbery put lives
in jeopardy because it instilled fear in the victims, which is congruent with the legislative intent of the
statute to deter actions that threaten physical safety during a robbery.

This case has been influential in subsequent cases involving toy guns, as it established that a toy gun can
be considered a "dangerous weapon" if it is used in a manner that endangers life or instills fear. For
instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed, affirming that a toy gun
fell within the meaning of a "dangerous weapon" under the federal bank robbery statute. The rationale
is that the use of a toy gun in a robbery creates similar risks to using an unloaded or inoperable genuine
gun, such as causing victims to experience greater apprehension, necessitating a more deliberate
response from law enforcement, and increasing the likelihood of an armed response, which in turn raises
the risk to physical security of all involved.

The Martinez-Jimenez decision underscores the seriousness with which the federal legal system treats
bank robberies, regardless of whether the weapon used is real or fake. It reflects a broader legal
principle that the potential harm and the perceived threat during the commission of a crime can be just
as significant as actual harm. This principle is applied consistently across various jurisdictions, ensuring
that the punitive measures for bank robbery remain stringent to deter such crimes effectively.

The case serves as a precedent that has shaped the legal landscape regarding the use of toy guns in the
commission of crimes, particularly in the context of bank robberies, where the distinction between real
and fake weapons may not matter in terms of sentencing and conviction.

In summary, while toy guns are intended for play and imitation, their realistic design can lead to them
being perceived as real, with serious legal and safety consequences.

The differentiation between the two is critical, not only for legal definitions and the application of
statutes like 18 U.S.C. § 2113 but also for public safety and the prevention of potentially fatal
misunderstandings. The ongoing debate and legislative efforts aim to address these concerns by
enhancing the visual differences between toy and real guns, thereby aiding in their identification, and
reducing the risks associated with their confusion. Toy gun https://en.wikipedia.org/wiki/Toy_gun

The federal bank robbery statute, codified at 18 U.S.C. § 2113, outlines various offenses related to bank
robbery and associated crimes. Specifically, subsection (d) of this statute increases the penalties for bank
robbery when the life of any person is put in jeopardy by the use of a dangerous weapon or device. The
case of United States v. §§§§§¶§§¶Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989), is a pivotal case that
addressed the definition of a "dangerous weapon" in the context of bank robbery. In this case, the
defendant, Gilbert Martinez-Jimenez, was convicted of armed bank robbery under 18 U.S.C. § 2113(a)
 12

and (d), despite the fact that the "weapon" used was a toy gun. The court found that the use of a toy gun
during the robbery put lives in jeopardy because it instilled fear in the victims, which is congruent with
the legislative intent of the statute to deter actions that threaten physical safety during a robbery.

This case has been influential in subsequent cases involving toy guns, as it established that a toy gun can
be considered a "dangerous weapon" if it is used in a manner that endangers life or instills fear. For
instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed, affirming that a toy gun
fell within the meaning of a "dangerous weapon" under the federal bank robbery statute. The rationale
is that the use of a toy gun in a robbery creates similar risks to using an unloaded or inoperable genuine
gun, such as causing victims to experience greater apprehension, necessitating a more deliberate
response from law enforcement, and increasing the likelihood of an armed response, which in turn raises
the risk to physical security of all involved.

The Martinez-Jimenez decision underscores the seriousness with which the federal legal system treats
bank robberies, regardless of whether the weapon used is real or fake. It reflects a broader legal
principle that the potential harm and the perceived threat during the commission of a crime can be just
as significant as actual harm. This principle is applied consistently across various jurisdictions, ensuring
that the punitive measures for bank robbery remain stringent to deter such crimes effectively. The case
serves as a precedent that has shaped the legal landscape regarding the use of toy guns in the
commission of crimes, particularly in the context of bank robberies, where the distinction between real
and fake weapons may not matter in terms of sentencing and conviction.

In summary, while toy guns are intended for play and imitation, their realistic design can lead to them
being perceived as real, with serious legal and safety consequences. The differentiation between the two
is critical, not only for legal definitions and the application of statutes like 18 U.S.C. § 2113 but also for
public safety and the prevention of potentially fatal misunderstandings. The ongoing debate and
legislative efforts aim to address these concerns by enhancing the visual differences between toy and
real guns, thereby aiding in their identification and reducing the risks associated with their confusion.

● Case Overview: Eldon Canter is charged with armed bank robbery under 18 U.S.C. § 2113(a) and
(d), using a wooden replica of a gun.

● Legal Definitions: A “dangerous weapon” is defined as an object that puts someone’s life in
jeopardy by force, violence, or intimidation.

● Case Law Precedent: United States v. Martinez-Jimenez established that a toy gun can be
considered a “dangerous weapon” if it causes fear for safety.

● Penalties: Bank robbery without a dangerous weapon can result in up to 20 years imprisonment;
with a dangerous weapon, up to 25 years.

● Amount Involved: The punishment may vary based on the amount stolen. For example, there are
distinctions in penalties for thefts under $100 compared to higher amounts stolen[5].

● Use of Force or Violence: Penalties may be more severe if force, violence, or threats were
involved in the commission of the bank robbery or related offense.

● Type of Crime: The severity of the offense, such as robbery, theft, or other criminal acts against
financial institutions, can influence the penalties imposed.

● Type of Financial Institution: The law applies to banks, credit unions, and savings and loan
associations. The penalties may be influenced by the specific type of institution targeted.

● Historical Context and Amendments: Previous legislative changes and amendments made to the
law over time could also impact the penalties under 18 U.S. Code § 2113.

These factors are crucial in determining the appropriate punishment for individuals involved in bank
robbery and related crimes as outlined in the statute.

Under California law, a "deadly weapon" is an instrument either designed to be lethal, or a dangerous
implement that can be used lethally.

A "dangerous weapon," on the other hand, is not necessarily always deadly.

 13

The unloaded pistol, although not "deadly," is "dangerous," because it can still be used as a bludgeon.

The legislature has also focused on the reporting of weapons offenses since health practitioners are
required by law to report to law enforcement, both orally and in writing, any patient who has suffered a
wound from a knife, firearm, or other deadly weapon.

This article explains California Penal Code Section 245, which pertains to assault with a deadly weapon;
Section 417, which outlaws the brandishing or use of any deadly weapon other than a firearm; and
Section 12020, which proscribes the possession of weapons designed to be used primarily for
destructive or harmful purposes.

Statutory Authority

Under 18 U.S.C. § 3563(b)(8), the court may provide that the defendant “refrain from possessing a
firearm, destructive device, or other dangerous weapon.”

Standard Condition Language

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous
weapon (i.e., anything that was designed or was modified for the specific purpose of causing bodily
injury or death to another person, such as nunchakus or tasers.

Purpose

● This condition serves the statutory sentencing purpose of public protection. 18 U.S.
● The federal bank robbery statute, codified at 18 U.S.C. § 2113, outlines various offenses related
to bank robbery and associated crimes. Specifically, subsection (d) of this statute increases the
penalties for bank robbery when the life of any person is put in jeopardy by the use of a
dangerous weapon or device. The case of United States v. §§§§§¶§§¶Martinez-Jimenez, 864 F.2d
664 (9th Cir. 1989), is a pivotal case that addressed the definition of a "dangerous weapon" in
the context of bank robbery. In this case, the defendant, Gilbert Martinez-Jimenez, was
convicted of armed bank robbery under 18 U.S.C. § 2113(a) and (d), despite the fact that the
"weapon" used was a toy gun. The court found that the use of a toy gun during the robbery put
lives in jeopardy because it instilled fear in the victims, which is congruent with the legislative
intent of the statute to deter actions that threaten physical safety during a robbery.
This case has been influential in subsequent cases involving toy guns, as it established that a toy
gun can be considered a "dangerous weapon" if it is used in a manner that endangers life or
instills fear. For instance, in U.S. v. Simmons, the reasoning from Martinez-Jimenez was followed,
affirming that a toy gun fell within the meaning of a "dangerous weapon" under the federal bank
robbery statute. The rationale is that the use of a toy gun in a robbery creates similar risks to
using an unloaded or inoperable genuine gun, such as causing victims to experience greater
apprehension, necessitating a more deliberate response from law enforcement, and increasing
the likelihood of an armed response, which in turn raises the risk to physical security of all
involved.
The Martinez-Jimenez decision underscores the seriousness with which the federal legal system
treats bank robberies, regardless of whether the weapon used is real or fake. It reflects a
broader legal principle that the potential harm and the perceived threat during the commission
of a crime can be just as significant as actual harm. This principle is applied consistently across
various jurisdictions, ensuring that the punitive measures for bank robbery remain stringent to
deter such crimes effectively. The case serves as a precedent that has shaped the legal landscape
regarding the use of toy guns in the commission of crimes, particularly in the context of bank
robberies, where the distinction between real and fake weapons may not matter in terms of
sentencing and conviction.
In summary, while toy guns are intended for play and imitation, their realistic design can lead to
them being perceived as real, with serious legal and safety consequences. The differentiation
between the two is critical, not only for legal definitions and the application of statutes like 18
U.S.C. § 2113 but also for public safety and the prevention of potentially fatal
misunderstandings. The ongoing debate and legislative efforts aim to address these concerns by
enhancing the visual differences between toy and real guns, thereby aiding in their identification
and reducing the risks associated with their confusion.

○ Case Overview: Eldon Canter is charged with armed bank robbery under 18 U.S.C. §
2113(a) and (d), using a wooden replica of a gun.
 14

○ Legal Definitions: A “dangerous weapon” is defined as an object that puts someone’s life
in jeopardy by force, violence, or intimidation.

○ Case Law Precedent: United States v. Martinez-Jimenez established that a toy gun can be
considered a “dangerous weapon” if it causes fear for safety.

○ Penalties: Bank robbery without a dangerous weapon can result in up to 20 years

imprisonment; with a dangerous weapon, up to 25 years.

The Crime of Burglary

{7} Section 30-16-3 defines the crime of burglary as “the unauthorized entry of any vehicle, watercraft,
aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or
theft therein.” As such, Section 30-16-3 expresses “a radical departure from its common law
predecessor,” which required “(1) breaking and (2) entering (3) a dwelling house (4) of another (5) in the
nighttime (6) with the intent to commit a felony therein.” State v. Rodriguez, 101 N.M. 192, 193, 679 P.2d
1290, 1291 (Ct. App. 1984); see State v. Bybee, 109 N.M. 44, 45, 781 P.2d 316, 317 (Ct. App. 1989). Thus,
our Legislature has chosen to keep only the element of entry completely intact. Rodriguez, 101 N.M. at
193, 679 P.2d at 1291. As this Court has held, entry contemplates penetration of a space by either a
person or an instrument. State v. Tixier, 89 N.M. 297, 298-99, 551 P.2d 987, 988-89 (Ct. App. 1976)
(holding that a one-half-inch penetration with an instrument is enough to effectuate an entry; “[a]ny
penetration, however slight, of the interior space is sufficient”).

{8} This Court’s opinions in Rodriguez and State v. Reynolds, 111 N.M. 263, 804 P.2d 1082 (Ct. App. 1990),
define the limits of entry in the context of vehicle burglary. In Rodriguez, the defendant reached into the
uncovered bed of a pickup truck and removed a toolbox with the intent of taking it unlawfully. 101 N.M.
at 193, 679 P.2d at 1291. This Court held that such an entry is sufficient to constitute a burglary. “[W]e
hold that the bed of a pickup truck, as a part of a vehicle, falls within the statutorily protected area.” Id.
at 194, 679 P.2d at 1292. A similar issue prompted the analysis in Reynolds. In that case, like the one
before us, police found the defendant on the ground beneath a vehicle. Testimony at trial established
that he reached into the engine compartment from underneath in an apparent attempt to remove the
vehicle’s starter. Reynolds, 111 N.M. at 264-65, 804 P.2d at 1083-84. This Court, citing Tixier, held that
such an act is sufficient to sustain a conviction for burglary. Reynolds, 111 N.M. at 270, 804 P.2d at 1089.
“In establishing a burglary, [a]ny penetration, however slight, of the interior space is sufficient [to
constitute entry]. Since there was no dispute that [the] defendant’s hand penetrated the engine
compartment of the vehicle, there would have been no rational basis for the jury to find attempted
burglary but not burglary itself[.]” Id. (second alteration in original) (internal quotation marks and
citation omitted). Thus, a jury could reasonably conclude that a burglary had occurred. Id.

{9} We are sympathetic to the unique facts of Defendant’s case. He was found draining fuel from the
tank of a van with no license plate, several broken windows, and four flat tires. The investigating officer
testified that the van would have been unsafe to drive, and Hanson, the owner, testified that the van
might have been sitting in the alley for as many as six months prior to the incident. In fact, during direct
examination, Hanson stated that although the van had not been abandoned, his plan for it was to “just
give it to charity or try to sell it for the engine.”

{10} Necessary or not, that which might be a prudent measure of justice must bow to that which the
State may legally prove. Simply put, Defendant was properly charged. He did not have permission to
enter the van, and his actions clearly constitute entry under New Mexico’s burglary statute.
 15

{11} By Defendant’s own uncontroverted admission to police, he laid down on the ground beneath the
van, procured an instrument, and used it to create a hole in the tank. As fuel dripped from the hole, he
caught it in a container specifically positioned to do so. He did not own the van or the fuel. Such facts are
plainly analogous to this Court’s opinions in Rodriguez and Reynolds. A fuel tank—attached as it is, to a
vehicle—is unquestionably a part of that vehicle and absolutely necessary for its primary function as a
mode of transportation. Any penetration of a vehicle’s perimeter is thus a penetration of the vehicle
itself. See Reynolds, 111 N.M. at 270, 804 P.2d at 1089. Like the defendant’s entry of the truck bed in
Rodriguez, this Defendant reached into the undercarriage of the van and removed fuel from inside the
tank located there. See Rodriguez, 101 N.M. at 193, 679 P.2d at 1291. In fact, Defendant went even
further by puncturing the tank in order to effectuate the theft. But perhaps even more analogous is
Reynolds. In that case, the defendant reached into the engine compartment from underneath so he
could remove the starter. Reynolds, 111 N.M. at 265, 270, 804 P.2d at 1084, 1089. Likewise, Defendant in
this case reached into the fuel tank, albeit via an instrument, in order to remove fuel, and as this Court
has held, “[a]ny penetration, however slight … is sufficient.” Id. at 270, 804 P.2d at 1089.

{12} The facts of the instant case fit cleanly within the conceptual framework established by Reynolds
and Rodriguez, and understandably, Defendant had difficulty distinguishing those opinions. He thus
relies heavily upon out-of-state cases to support his argument, but each is readily distinguishable in
either law or fact. For instance, in People v. Davis, 18 Cal. 4th 712, 76 Cal. Rptr. 2d 770, 958 P.2d 1083,
1090 (1998), the defendant placed a forged check into the deposit window of a check cashing business.
The court held that such an act, although technically an entry with the intent to commit a theft, should
nevertheless not be considered an entry for purposes of California’s burglary statute. Id. Likewise, in
R.E.S. v. State, 396 So. 2d 1219, 1220 (Fla. Dist. Ct. App. 1981), the court analyzed whether, under
Florida’s burglary statute, siphoning gas from the tank of a vehicle constituted an entry. It held that
siphoning did not constitute an entry and based its holding on the notion that Florida’s burglary statute
contemplates only vehicle compartments “which can be entered either wholly or partially by a person;
e.g., engine and passenger compartments, trunks, etc.” Id. Finally, the Florida Supreme Court reached
the same conclusion in Drew v. State, 773 So. 2d 46, 47 (Fla. 2000), when it considered whether the
removal of tires or hub-caps from a vehicle constituted an entry. In that opinion, the court held that such
an act could not constitute a burglary because Florida’s common law requires that the theft actually take
place “within” the vehicle. Removal of a tire or hubcap, which requires disassembly, thus does not take
place within the vehicle as required by the statute. Id. at 52.

{13} On the facts and New Mexico law before us, the reasoning of these out-of-state authorities fails to
persuade. The facts of Davis, for instance, are readily distinguishable. In that case, the California court
held that an entry had not occurred because the chute in which the defendant placed the forged check
was regularly used by other patrons who also deposited checks. Such an entry does not violate “the
occupant’s possessory interest in the building.” Davis, 76 Cal. Rptr. 2d 770, 958 P.2d at 1089. In the case
before us, Hanson’s possessory interest in the van was clearly violated when Defendant punctured its
tank. Nor are we persuaded by R.E.S. and Drew, the Florida opinions, which both proceed from
interpretations of Florida’s case law. In those cases, it is apparent that burglary in Florida contemplates
the entry of a vehicle compartment large enough to accommodate at least a part of a person and that
the theft actually occurred within the vehicle. See Drew, 773 So. 2d at 52; R.E.S., 396 So. 2d at 1220. Not
so in New Mexico, where a slight entry by use of an instrument is sufficient. See, e.g., Reynolds, 111
N.M. at 264-65, 804 P.2d at 1083-84 (providing that removal of a starter from the engine compartment is
sufficient to constitute burglary); Tixier, 89 N.M. at 298-99, 551 P.2d at 988-89 (including the use of an
instrument in the definition of an entry). We turn now to Defendant’s other argument on appeal.

***

Conclusion

{16} For the reasons stated above, we hold that using a nail to penetrate a vehicle’s gas tank constitutes
an entry under Section 30-16-3. We also hold that substantial evidence supports each of Defendant’s
convictions. We affirm.
 16

The Crime of Burglary

{7} Section 30-16-3 defines the crime of burglary as “the unauthorized entry of any vehicle,
watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit
any felony or theft therein.” As such, Section 30-16-3 expresses “a radical departure from its
common law predecessor,” which required “(1) breaking and (2) entering (3) a dwelling house
(4) of another (5) in the nighttime (6) with the intent to commit a felony therein.” State v.
Rodriguez, 101 N.M. 192, 193, 679 P.2d 1290, 1291 (Ct. App. 1984); see State v. Bybee, 109
N.M. 44, 45, 781 P.2d 316, 317 (Ct. App. 1989). Thus, our Legislature has chosen to keep only
the element of entry completely intact. Rodriguez, 101 N.M. at 193, 679 P.2d at 1291. As this
Court has held, entry contemplates penetration of a space by either a person or an instrument.
State v. Tixier, 89 N.M. 297, 298-99, 551 P.2d 987, 988-89 (Ct. App. 1976) (holding that a
one-half-inch penetration with an instrument is enough to effectuate an entry; “[a]ny penetration,
however slight, of the interior space is sufficient”).

{8} This Court’s opinions in Rodriguez and State v. Reynolds, 111 N.M. 263, 804 P.2d 1082 (Ct.
App. 1990), define the limits of entry in the context of vehicle

burglary. In Rodriguez, the defendant reached into the uncovered bed of a pickup truck and
removed a toolbox with the intent of taking it unlawfully. 101 N.M. at 193, 679 P.2d at 1291.
This Court held that such an entry is sufficient to constitute a burglary. “[W]e hold that the bed of
a pickup truck, as a part of a vehicle, falls within the statutorily protected area.” Id. at 194, 679
P.2d at 1292. A similar issue prompted the analysis in Reynolds. In that case, like the one before
us, police found the defendant on the ground beneath a vehicle. Testimony at trial established
that he reached into the engine compartment from underneath in an apparent attempt to remove
the vehicle’s starter. Reynolds, 111 N.M. at 264-65, 804 P.2d at 1083-84. This Court, citing
Tixier, held that such an act is sufficient to sustain a conviction for burglary. Reynolds, 111 N.M.
at 270, 804 P.2d at 1089. “In establishing a burglary, [a]ny penetration, however slight, of the
interior space is sufficient [to constitute entry]. Since there was no dispute that [the] defendant’s
hand penetrated the engine compartment of the vehicle, there would have been no rational basis
for the jury to find attempted burglary but not burglary itself[.]” Id. (second alteration in original)
(internal quotation marks and citation omitted). Thus, a jury could reasonably conclude that a
burglary had occurred. Id.

{9} We are sympathetic to the unique facts of Defendant’s case. He was found draining fuel from
the tank of a van with no license plate, several broken windows, and four flat tires. The
investigating officer testified that the van would have been unsafe to drive, and Hanson, the
owner, testified that the van might have been sitting in the alley for as many as six months prior
to the incident. In fact, during direct examination, Hanson stated that although the van had not
been abandoned, his plan for it was to “just give it to charity or try to sell it for the engine.”

{10} Necessary or not, that which might be a prudent measure of justice must bow to that which
the State may legally prove. Simply put, Defendant was properly charged. He did not have
permission to enter the van, and his actions clearly constitute entry under New Mexico’s burglary
statute.

{11} By Defendant’s own uncontroverted admission to police, he laid down on the ground
beneath the van, procured an instrument, and used it to create a hole in the tank. As fuel dripped
from the hole, he caught it in a container specifically positioned to do so. He did not own the van
or the fuel. Such facts are plainly analogous to this Court’s opinions in Rodriguez and Reynolds.
A fuel tank—attached as it is, to a vehicle—is unquestionably a part of that vehicle and
absolutely necessary for its primary function as a mode of transportation. Any penetration of a
vehicle’s perimeter is thus a penetration of the vehicle itself. See Reynolds, 111 N.M. at 270, 804
P.2d at 1089. Like the defendant’s entry of the truck bed in Rodriguez, this Defendant reached
into the undercarriage of the van and removed fuel from inside the tank located there. See
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Rodriguez, 101 N.M. at 193, 679 P.2d at 1291. In fact, Defendant went even further by
puncturing the tank in order to effectuate the theft. But perhaps even more analogous is
Reynolds. In that case, the defendant reached into the engine compartment from underneath so he
could remove the starter. Reynolds, 111 N.M. at 265, 270, 804 P.2d at 1084, 1089. Likewise,
Defendant in this case reached into the fuel tank, albeit via an instrument, in order to remove
fuel, and as this Court has held, “[a]ny penetration, however slight … is sufficient.” Id. at 270,
804 P.2d at 1089.

{12} The facts of the instant case fit cleanly within the conceptual framework established by
Reynolds and Rodriguez, and understandably, Defendant had difficulty distinguishing those
opinions. He thus relies heavily upon out-of-state cases to support his argument, but each is
readily distinguishable in either law or fact. For instance, in People v. Davis, 18 Cal. 4th 712, 76
Cal. Rptr. 2d 770, 958 P.2d 1083, 1090 (1998), the defendant placed a forged check into the
deposit window of a check cashing business. The court held that such an act, although
technically an entry with the intent to commit a theft, should nevertheless not be considered an
entry for purposes of California’s burglary statute. Id. Likewise, in R.E.S. v. State, 396 So. 2d
1219, 1220 (Fla. Dist. Ct. App. 1981), the court analyzed whether, under Florida’s burglary
statute, siphoning gas from the tank of a vehicle constituted an entry. It held that siphoning did
not constitute an entry and based its holding on the notion that Florida’s burglary statute
contemplates only vehicle compartments “which can be entered either wholly or partially by a
person; e.g., engine and passenger compartments, trunks, etc.” Id. Finally, the Florida Supreme
Court reached the same conclusion in Drew v. State, 773 So. 2d 46, 47 (Fla. 2000), when it
considered whether the removal of tires or hub-caps from a vehicle constituted an entry. In that
opinion, the court held that such an act could not constitute a burglary because Florida’s common
law requires that the theft

actually take place “within” the vehicle. Removal of a tire or hubcap, which requires
disassembly, thus does not take place within the vehicle as required by the statute. Id. at 52.

{13} On the facts and New Mexico law before us, the reasoning of these out-of-state authorities
fails to persuade. The facts of Davis, for instance, are readily distinguishable. In that case, the
California court held that an entry had not occurred because the chute in which the defendant
placed the forged check was regularly used by other patrons who also deposited checks. Such an
entry does not violate “the occupant’s possessory interest in the building.” Davis, 76 Cal. Rptr.
2d 770, 958 P.2d at 1089. In the case before us, Hanson’s possessory interest in the van was
clearly violated when Defendant punctured its tank. Nor are we persuaded by R.E.S. and Drew,
the Florida opinions, which both proceed from interpretations of Florida’s case law. In those
cases, it is apparent that burglary in Florida contemplates the entry of a vehicle compartment
large enough to accommodate at least a part of a person and that the theft actually occurred
within the vehicle. See Drew, 773 So. 2d at 52; R.E.S., 396 So. 2d at 1220. Not so in New
Mexico, where a slight entry by use of an instrument is sufficient. See, e.g., Reynolds, 111 N.M.
at 264-65, 804 P.2d at 1083-84 (providing that removal of a starter from the engine compartment
is sufficient to constitute burglary); Tixier, 89 N.M. at 298-99, 551 P.2d at 988-89 (including the
use of an instrument in the definition of an entry). We turn now to Defendant’s other argument
on appeal.

***

Conclusion

{16} For the reasons stated above, we hold that using a nail to penetrate a vehicle’s gas tank
constitutes an entry under Section 30-16-3. We also hold that substantial evidence supports each
of Defendant’s convictions. We affirm.

{17} IT IS SO ORDERED.
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WE CONCUR: JONATHAN B. SUTIN and TIMOTHY L. GARCIA, Judges.