How would you rule?

The Washington appellate court stated that a person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person. The intent required for burglary is intent to commit any crime inside the burglarized premises. Intent to commit a crime may be inferred when a person enters or remains unlawfully. Mr. Sandoval and Mr. Christensen did not know each other. Mr. Sandoval loudly kicked open the door. The lock on the storm door was broken. The front door casing was broken. And the door was cracked. He shoved Mr. Christensen only when confronted. Mr. Christensen did not know what to make of Mr. Sandoval’s presence. Mr. Sandoval was surprised to see Mr. Christensen in the residence. But there is no fact, alone or in conjunction with others, from which entering with intent to commit a crime more likely than not could flow. The parties were strangers. The assault was a shove after entering. Mr. Sandoval did not try to sneak in and he was not wearing burglary-like apparel or carrying burglary tools. Sandoval did not attempt to flee. Mr. Christensen noted: “It’s not like he was in a hurry to get out.” Mr. Sandoval did not try to take any of Mr. Christensen’s property or confess to doing so. The inference of intent to commit the crime of first-degree burglary does not then flow more probably than not from the breaking and entering here (text taken directly from judgment of the court).

As a judge, how would you decide this case?

Under California law, the crime of burglary is committed when a person “enters any … building,” including a “house,” “with intent to commit … larceny or any felony.” (Pen. Code, § 459. We granted review to determine whether penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute when the window itself is closed and is not penetrated.

Facts           

The evidence presented at defendant’s trial for the crime of burglary, viewed in the light most favorable to the judgment, reveals the following facts pertinent to the issue before us:

On the morning of February 4, 1998, Lee Florea left the house he shared with his wife and children in Santa Ana to go to work, with the doors and windows locked and the window screens secured in their tracks in front of the windows. About noon, Nicky Nava, who lived across the street from the Floreas, came home for lunch. Looking out through a screen door, Nava saw a person later identified as defendant. As she watched, defendant, who apparently had a screwdriver in his hand, removed a window screen from a bathroom window of the Floreas’ house and tried unsuccessfully to open the window itself. Evidently, defendant earlier had pulled a window screen away from a bedroom window of the Floreas’ house and had tried unsuccessfully to open that window as well.

Nava called the Santa Ana Police Department and described defendant and his activities. As she continued to watch, moving at some point up to her screen door and then outside, defendant walked from the bathroom window of the Floreas’ house and tried unsuccessfully to open the front door. Apparently in anger or frustration, defendant banged on the wall and then sat down for a few minutes. Defendant then got into an automobile, which resembled a gray or brown Monte Carlo or LTD, drove down the street about four houses away, parked, and got out.

By this time, Santa Ana Police Officer John Douthit had arrived at the scene. Douthit approached defendant, who was standing in the driveway of the house in front of which he had parked. Douthit asked defendant whether he owned the automobile parked in front of the house, and defendant answered he did not; Douthit asked defendant what he was doing, and defendant answered he was looking for a friend he called “Tommy.” Douthit then searched defendant’s pants pocket and found a pair of black gloves and a screwdriver with a bent blade and shank. Through a police dispatcher, Douthit confirmed that defendant matched the description reported by Nava. Douthit then arrested defendant. Defendant protested that he had not done anything wrong, and that he merely had been looking for a friend, whom he now called “Tony,” to help in locating a stolen bicycle.

Going to the Floreas’ house, Officer Douthit found what appeared to be rub marks on the bathroom window that could have been made by defendant’s hand or hands as he tried to open the window. Douthit also found several pry marks on the frame of the bedroom window that could have been made by defendant’s screwdriver. Florea returned to his house about this time, finding the scene as described above. Douthit later determined that defendant did indeed own the automobile he had denied owning.

After the presentation of evidence, the trial court instructed the jury on the offense of burglary. At the People’s request, and over defendant’s objection, the court gave the following instruction, drawn directly from People v. Nible (1988) 200 Cal.App.3d 838 and indirectly from People v. Ravenscroft (1988) 198 Cal.App.3d 639: “Any kind of entry, partial or complete, will satisfy the element of entry. The entry may be made by any part of the body or by use of an instrument or tool. In order for there to have been an entry, a part of the defendant’s body or some instrument, tool or other object under his control must have penetrated the area inside where the screen was normally affixed in the window frame in question.” The court refused to give the following instruction, based upon language from Nible, which defendant requested and the People objected to: “The test of whether an entry has occurred is whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions.”

The jury returned a verdict finding defendant guilty of burglary and determining that the burglary was of the first degree because it involved an inhabited dwelling house. The trial court rendered a judgment of conviction on the jury’s verdict, imposing a sentence of four years in prison.

On appeal, the Court of Appeal held that penetration into the area behind a window screen does not amount to an entry of a building within the meaning of the burglary statute, at least when, as in this case, the window itself is closed and is not penetrated. The Court of Appeal therefore concluded that the trial court erred by instructing the jury as requested by the People. The Court of Appeal also concluded that the trial court did not err by refusing to instruct as requested by defendant. The Court of Appeal went on to determine that, “[a]s a matter of law,” defendant “was guilty only of attempted [first-degree] burglary.” As a consequence, the Court of Appeal reversed defendant’s conviction and sentence for first-degree burglary and remanded the case to the trial court with directions to enter a conviction for attempted first-degree burglary and to impose sentence accordingly.

Reasoning

The crime of burglary is committed when a person “enters any … building,” including a “house,” “with intent to commit … larceny or any felony.” Burglary may be of the first or second degree, but in either event involves an entry into a building or other specified structure.

The issue before us is whether penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute when the window itself is closed and is not penetrated. As we shall explain, we conclude that it does.

In People v. Davis (1998) 958 P.2d 1083, we recently had occasion to discuss the offense of burglary, including consideration of its historical background and its general contours today. Our discussion provides a useful starting point for addressing the rather narrow question presented in this case.

In Davis, we explained that the interest sought to be protected by the common law crime of burglary was clear. At common law, burglary was the breaking and entering of a dwelling in the nighttime. The law was intended to protect the sanctity of a person’s home during the night hours when the resident was most vulnerable. As one commentator observed: “The predominant factor underlying common law burglary was the desire to protect the security of the home, and the person within his home. Burglary was not an offense against property, real or personal, but an offense against the habitation, for it could only be committed against the dwelling of another … The dwelling was sacred, but a duty was imposed on the owner to protect himself as well as looking to the law for protection. The intruder had to break and enter; if the owner left the door open, his carelessness would allow the intruder to go unpunished. The offense had to occur at night; in the daytime homeowners were not asleep, and could detect the intruder and protect their homes.”

We went on to explain in Davis that, “[i]n California, as in other states, the scope of the burglary law has been greatly expanded. There is no requirement of a breaking; an entry alone is sufficient. The crime is not limited to dwellings, but includes entry into a wide variety of structures. The crime need not be committed at night.”

Nonetheless, as we added in Davis, the great expansion in the scope of the burglary law has not been unlimited. “In People v. Gauze (1975) 542 P.2d 1365, we … observed that ‘[a] burglary remains an entry which invades a possessory interest in a building.’” “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.” The burglary statute, in short, is aimed at the danger caused by the unauthorized entry itself.

In Davis, we further proceeded to note and approve the rule that entry may be effected by the intruder or by an instrument employed by the intruder, whether used “solely to effect entry, or to accomplish the intended larceny or felony as well.”

Accordingly, resolution of the question before us does not depend upon whether penetration into the area behind a window screen is effected by the intruder or by an instrument employed by the intruder. Rather, it turns solely upon whether any such penetration amounts to an entry of a building.

In approaching this question, the People and defendant place considerable reliance, as did the Court of Appeal, on two Court of Appeal decisions—Ravenscroft and Nible—that preceded our decision in Davis.

In Ravenscroft, the Court of Appeal held that a defendant’s insertion of an automatic teller machine (ATM) card into an ATM that was mounted inside a bank and was secured flush with the bank’s exterior wall amounted to an entry of a building within the meaning of the burglary statute, because the ATM was part of the bank’s outer boundary for purposes of burglary. In so holding, the Court of Appeal rejected a claim by the defendant that “his insertion of an ATM card into” an ATM did “not constitute an entry” of the bank “since he did not violate [its] air space.” The Court of Appeal stated: “The insertion of an ATM card … is no less an entry into the air space of a bank as would be the use of any other tool or instrument. Although the California Penal Code does not define ‘entry’ for the purpose of burglary, the California courts have found that a burglary is complete upon the slightest partial entry of any kind, with the requisite intent.” In support, the Court of Appeal relied upon People v. Walters, 249 Cal.App.2d at page 550, where the intruders simply pried off and removed the lid of a rooftop vent and lowered a rope into a building. The Court of Appeal also relied upon People v. Osegueda, 163 Cal.App.3d Supp. at pages 31-32, where the intruders merely sawed a six-inch by four- to five-inch hole through the wall of a building.

In Nible—which is the California case whose facts are closest to ours, and which we accordingly discuss at some length—the Court of Appeal held that a defendant’s penetration into the area behind a window screen amounted to an entry of a building within the meaning of the burglary statute, because the window screen was part of the building’s outer boundary for purposes of burglary.

In support of its holding, the Court of Appeal in Nible explained: “No California authority has considered whether the penetration of a window screen, without penetration of … the window beyond, constitutes an entry within the meaning of [the burglary statute]. Defendant contends the correct analysis to determine whether a burglarious entry has occurred is whether the ‘air space’ of a protected structure has been penetrated by a part of the defendant’s body or an instrument or tool wielded by him. The ‘air space’ analysis of Ravenscroft … does not necessarily lead to the result defendant suggests. Rather, it is reasonable to conclude that a window screen contains the outer boundary of a building’s air space, especially when, as here, the window itself was left open. However it might be applied here, in our view the ‘air space’ test, although useful in some situations, is inadequate as a comprehensive test for determining when a burglarious entry occurs.”

The Court of Appeal in Nible went on to state that “a more comprehensive test is suggested by the California Supreme Court’s analysis:”

The Court of Appeal in Nible reasoned: “As the burglary statute is designed to protect against unauthorized entry and its attendant dangers, the ultimate test of whether a burglarious entry has occurred must focus on the protection the owners or inhabitants of a structure reasonably expect. The proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusions. A structure with a locked door or window clearly affords a reasonable expectation of protection from invasion. But even an open door or window affords some expectation of protection from unauthorized intrusion because reasonable persons understand the social convention that portals may not be crossed without permission from the structure’s owner.”

“Thus,” stated the Court of Appeal in Nible, “the focus of the question whether the penetration of a window screen constitutes a burglarious entry must be on whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions. The answer is unequivocally in the affirmative. “The opening of a screen door or window is deemed a burglarious breaking, … In such cases the screen door [or window] is not to be considered as a mere protection against flies, but rather as a permanent part of the dwelling. The holdings proceed, it would seem, on the grounds that the screen door [or window] is a part of the house on which the occupants rely for protection and that to open such a door [or window] is a violation of the security of the dwelling house which is the peculiar gravamen of a burglarious breaking.”

The Court of Appeal in Nible concluded: “The purposes of the burglary laws are best served by our holding the penetration of a window screen constitutes entry within the meaning of [the burglary statute]. As noted above, the burglary law protects against the dangers caused by unauthorized entry. The inhabitants of a building are just as likely to react violently to an intruder’s penetration of their window screen as to the penetration of the window itself.”

In Davis, subsequent to the Court of Appeal decisions in Ravenscroft and Nible, we faced the question whether a defendant’s placing of a forged check into a chute in a walk-up window at a check-cashing facility amounted to an entry of a building within the meaning of the burglary statute. We held that it did not. In so holding, we accepted that the chute was part of the building’s outer boundary for purposes of burglary. We reasoned, however, that although the placing of the forged check into the chute effected a type of entry, it was not “the type of entry the burglary statute was intended to prevent.” In support, we stated that the act did not “violate the occupant’s possessory interest in the building” or “threaten” “the germination of a situation dangerous to personal safety.”

In the course of our discussion in Davis, we “disapprove[d]” Ravenscroft to the extent it held that a defendant’s insertion of an ATM card into an ATM in a bank amounted to an entry of a building within the meaning of the burglary statute. At the same time, however, we added that we did “not disapprove the other aspects of … Ravenscroft, including its conclusion that the ATM card in that case was inserted into the air space of the ATM,” and on this point we inserted a citation to Nible.

As we have seen, the Court of Appeal in Nible found in Ravenscroft what it called a sometimes “useful,” but sometimes “inadequate,” “‘air space’ test.” The Court of Appeal in Nible proposed as “more comprehensive” a “reasonable belief” or “reasonable expectation” test.

Like the Court of Appeal in Nible, we have misgivings about the general usefulness of an airspace test to define the outer boundary of a building for purposes of burglary. An airspace test, to be sure, may be helpful when the question is whether there is the “slightest partial entry” of a building as when an intruder simply lowers a rope into a building through a rooftop vent or saws a hole through the wall of a building. But an airspace test does not help define the outer boundary of a building when that boundary is not otherwise established. The airspace of a building is not independent of the outer boundary of a building; rather, the airspace of a building simply is that which is surrounded by the building’s outer boundary.

In most instances, of course, the outer boundary of a building for purposes of burglary is self-evident. Thus, in general, the roof, walls, doors, and windows constitute parts of a building’s outer boundary, the penetration of which is sufficient for entry.

In other instances, in which the outer boundary of a building for purposes of burglary is not self-evident, we believe that a reasonable belief test generally may be useful in defining the building’s outer boundary. Under such a test, in dealing with items such as a window screen, a building’s outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization.

We note that, at one point in its discussion, the Court of Appeal in Nible employed language that might be understood to cast the reasonable belief test in terms of “whether a reasonable person would believe” that any given element of a building “provides some [physical] protection against unauthorized intrusions.” The latter quoted language might be appropriate if the offense of burglary continued to require unlawful breaking as well as entering. In that event, an element of a building would have to be something that could protect against breach. But, as we have stated most recently in Davis, burglary now entails only unlawful entry. In light of that circumstance, we believe that the test properly is phrased in terms of whether a reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization. Indeed, as so phrased the test is not inconsistent with what the Court of Appeal in Nible seems to have had in mind. As we have noted, that court stated that “even an open door or window affords some expectation of protection from unauthorized intrusion because reasonable persons understand the social convention that portals may not be crossed without permission”—implying that what matters is not whether a reasonable person would believe that a given element of a building provides some physical protection against unauthorized intrusion, but simply whether a reasonable person would believe that a member of the general public needed authorization to pass beyond it.

Under the reasonable belief test as set forth above, we are of the view that a window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization. As the Court of Appeal in Nible implied, window screens, which announce that intrusion is unauthorized, do not limit their message to flies but extend it to burglars as well.

We recognize that penetration into the area behind a window screen without penetration of the window itself usually will effect only a minimal entry of a building in terms of distance. But it has long been settled that “[a]ny kind of entry, complete or partial, … will” suffice. All that is needed is entry “inside the premises,” not entry inside some inner part of the premises Furthermore, there is little doubt that even the minimal entry effected by penetration into the area behind a window screen—without penetration of the window itself—is “the type of entry the burglary statute was intended to prevent.” Such an entry “violates the occupant’s possessory interest in the building.” It also threatens “the germination of a situation dangerous to personal safety.” As the Court of Appeal in Nible observed, “[t]he inhabitants of a building are just as likely to react violently to an intruder’s penetration of their window screen as to the penetration of the window itself.” In Davis, we held that the placing of a forged check into a chute in a walk-up window at a check-cashing facility was not “the type of entry the burglary statute was intended to prevent,” because it did not violate any occupant’s possessory interest in a building or his or her personal interest in freedom from violence that might ensue from unauthorized intrusion. By contrast, penetration into the area behind a window screen—even without penetration of the window itself—is just such an entry, because it violates both of these interests.

In view of the foregoing, we conclude that penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated. In holding to the contrary, the Court of Appeal purported to rely on Davis. Its reliance, however, was misplaced. In Davis, we did not rest our decision on whether the chute in the check-cashing facility’s walk-up window was part of the building’s outer boundary for purposes of burglary, but rather on whether the placing of the forged check into the chute affected the type of entry that the burglary statute was intended to prevent. In particular, we did not purport to adopt an airspace test as the standard for defining a building’s outer boundary. When we referred to a building’s airspace, we did so simply to denote what was inside what we accepted as the building’s outer boundary.

Further, the Court of Appeal reasoned that penetration into the area behind a window screen without penetration of the window itself does not amount to an entry of a building within the meaning of the burglary statute, because such penetration does not reach inside some inner part of the premises or because the area penetrated is too “minuscule.” But, as we have stated, all that is needed is entry “inside the premises.” Because we have concluded that a window screen is part of the outer boundary of a building for purposes of burglary, it follows that the area behind the window screen is inside the premises. Entry that is just barely inside the premises, even if the area penetrated is small, is sufficient.

Defendant presents several arguments in support of his position, but we find none persuasive. In addition to relying on an airspace test and the Court of Appeal’s reasoning, which we already have discussed and rejected, defendant claims that the reasonable belief test is unacceptably vague and indeterminate. He urges that instead we should adopt some sort of bright-line rule. In our view, however, the reasonable belief test is well suited to define the outer boundary of a building for purposes of burglary and, in application, operates as a kind of bright-line rule with respect to any given element of a building. Contrary to defendant’s implication, the test does not leave it to the trier of fact in an individual case to find whether or not a window screen is part of the outer boundary of a building. Instead, applying the reasonable belief test, we ourselves have concluded that a window screen is part of a building’s outer boundary and, hence, that penetration into the area behind a window screen amounts to an entry of a building even when the window itself is closed and is not penetrated.

We now review the Court of Appeal’s decision in light of our conclusion.

As noted, the Court of Appeal held that penetration into the area behind a window screen does not amount to an entry of a building within the meaning of the burglary statute, at least when the window itself is closed and is not penetrated. The Court of Appeal therefore concluded that the trial court had erred by instructing the jury, at the People’s request, that “[i]n order for there to have been an entry, a part of the defendant’s body or some instrument, tool or other object under his control must have penetrated the area inside where the screen was normally affixed in the window frame in question.” The Court of Appeal also concluded that the trial court had not erred by refusing to instruct the jury, at defendant’s request, that “[t]he test of whether an entry has occurred is whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions.”

In view of our conclusion that penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated, we reject the Court of Appeal’s contrary holding. We also disagree with the Court of Appeal’s determination that the instruction requested by the People was erroneous. That instruction was consistent with the conclusion we reach. There is no reasonable likelihood that the jury misunderstood or misapplied the instruction.

In contrast, we agree with the Court of Appeal that the instruction requested by defendant was erroneous. Whether penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute is a question of law and not a question of fact. A trial court’s instructions must resolve such a legal issue for the jury, and may not invite the jury to resolve the question for itself.

Finally, based on its holding that penetration into the area behind a window screen does not amount to an entry of a building within the meaning of the burglary statute, at least when the window itself is closed and is not penetrated, the Court of Appeal determined that, “[a]s a matter of law” defendant “was guilty only of attempted [first-degree] burglary,” and reversed defendant’s conviction and sentence for first-degree burglary, remanding the cause to the trial court with directions to enter a conviction for attempted first-degree burglary and to impose sentence accordingly. Because we have determined that even when the window itself is closed and is not penetrated, penetration of a window screen amounts to an entry of a building, we conclude that the Court of Appeal erred in reversing defendant’s conviction and sentence on this ground.

Kennard, J. dissenting

Under California law, one who “enters” a building with the intent to commit theft or a felony is guilty of burglary. Here, defendant pried off a window screen on a house, but he was unable to open the window to get inside the house. Did he “enter” the house within the meaning of the burglary statute? According to the majority, he did. I disagree. In my view, the crime defendant committed is attempted burglary because he tried, but failed, to enter the house.

Penal Code section 459 defines burglary this way: “Every person who enters any home, room, apartment, … or other building … with intent to commit grand or petit larceny or any felony is guilty of burglary.” At issue is whether defendant committed burglary when he successfully removed a window screen but could not open the window to gain entry into the house.

I begin with these basic rules of statutory construction, which the majority conveniently ignores. “In construing statutes, we must determine and effectuate legislative intent.” “To ascertain intent, we look first to the words of the statutes” (ibid.), “giving them their usual and ordinary meaning.” Thus, any attempt here to determine whether defendant’s conduct satisfied the statutory definition of the crime of burglary should begin with the usual and ordinary meaning of the crucial term “enters.”

One widely used dictionary gives this pertinent definition of the word “enter”: “To come or go into a place, building, room, etc.” Another states, more simply, “To come or go into.” Similarly, a respected legal dictionary defines “entry,” as used in criminal law, as “[t]he unlawful coming into a building to commit a crime.”

The idea that one “enters” a building by going inside it is consistent with the Legislature’s purpose in requiring an entry as an element of the crime of burglary. The Legislature recognized that a prowler or trespasser looking for items to steal outside a building does not pose the same risk to the building’s occupants as does a person who goes inside a building, particularly a home, with the requisite intent. As this court has explained: “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger and panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.” [“We have often recognized that persons within dwellings are in greater peril from intruders bent on stealing or engaging in other felonious conduct … Persons within dwellings are more likely to resist and less likely to be able to avoid the consequences of crimes committed inside their homes”; the crime of burglary “reflects a considered judgment that especially severe sanctions are appropriate for a criminal invasion of premises under circumstances likely to terrorize occupants.”]

 To implement this legislative purpose, I would give the term “enter,” as used in the burglary statute, the usual and ordinary meaning described earlier. Thus, a person “enters” a building when the person, or an instrument wielded by that person, passes through an area inside the building.

Under this definition, an intruder who removes a screen that is outside a closed window of a building, but who does not succeed in opening the window, has not “entered” the building. Why? Because a screen outside a closed window is not inside the building. For instance, if a homeowner removes the screens in order to wash the outside of the windows, that act does not constitute entry of the house. If in this case there had been no screen on the window, the majority does not dispute that defendant’s unsuccessful efforts to open the window would have been simply an attempted burglary. That should also be the conclusion when, as here, a defendant removes the screen but is unable to open the window behind the screen to gain entry into the home.

That conclusion is consistent with the Legislature’s purpose in requiring an entry as an element of burglary. As I have explained, an intruder who gains entry into a dwelling poses a danger to the occupants’ personal safety, increasing the risk of a violent encounter. But someone who, as in this case, removes a window screen but remains outside the closed window because he cannot open it, presents less of a danger to the occupants than one who opens the window and climbs into the house. Unlike the majority, I would hold that defendant committed not burglary but attempted burglary. In my view, that conclusion best effectuates the burglary statute’s legislative intent.

Instead of relying on the ordinary aids used in statutory construction, such as dictionary definitions and the common law, the majority concocts a definition of its own. According to the majority, an intruder crosses the “outer boundary” of a building simply by being in “an area into which a reasonable person would believe that a member of the general public could not pass without authorization.” That might be a reasonable definition if the Legislature had said so. But it did not. Instead, it required that the defendant enter the building. Crossing a building’s “outer boundary” is not the same as entering it.

To commit a burglary in California one must enter a building with the requisite intent. The ordinary meaning of “enter” is a movement by an intruder (or an instrument wielded by an intruder) inside the building. This is consistent with the burglary statute’s underlying purpose of deterring violent confrontations between intruders and occupants of buildings. Instead of embracing this straightforward definition, however, the majority adopts a complex formula that relies on outer boundaries, reasonable expectations, and “authorization” to “pass.”

This is a relatively simple case. The defendant set out to break into a house to steal something inside. He encountered a double barrier: a screen and a window. He succeeded in getting through the first barrier but not the second, and thus failed to “enter” the house within the meaning of the burglary statute. He is therefore guilty not of burglary but of attempted burglary, as the Court of Appeal held. Accordingly, I would affirm the Court of Appeal’s judgment.

J.L. claims that he was guilty of trespass rather than burglary. Do you agree?

J.L. was found guilty of burglary of a dwelling and theft. He appeals the trial court’s denial of his motion for judgment of dismissal as to the burglary count only. Specifically, J.L. contends that the State failed to prove that the yard from which the victim’s personal property was taken was sufficiently enclosed so as to constitute curtilage of the victim’s house.

Facts

The evidence established that J.L. stole a go-cart, a four-wheeler, and a skateboard from the victim’s yard. These items were leaning against the side of the victim’s residence. The entire extent of the testimony regarding the “enclosure” of the victim’s yard came from the victim’s mother. She testified that there was a fence “in the back” and a fence “between … my house and my neighbor’s house.” There was no testimony as to the distance of these fences from the house, whether the two fences connected to each other, or even whether there was a fence on the side of the house from which the victim’s personal property was taken.

To prove the offense of burglary of a dwelling, the State was required to prove that J.L. entered a “dwelling” with the intent to commit an offense therein. § 810.02(1)(b)1., Fla. Stat. (2009). “Dwelling” is defined to mean: “[A] building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.”

There was no contention or evidence that J.L. entered the house in which the victim resided. The issue was whether J.L. entered the building’s curtilage.

The Florida statutes do not provide a definition for the word “curtilage.” However, in State v. Hamilton, 660 So.2d 1038 (Fla. 1995), the Florida Supreme Court determined that there must be “some form of an enclosure” in order for the area surrounding a residence to be considered part of the curtilage as referenced in the burglary statute. Subsequently, in Martinez v. State, 700 So.2d 142 (Fla. Ct. App. 1997), this court relied on Hamilton in concluding that an unattached garage located at the south end of the victim’s property was not a part of the residence’s curtilage, notwithstanding that the victim’s yard had fences on its north and east borders. It is difficult to distinguish Martinez from the instant case.

The fact that the stolen personal property was leaning against the victim’s residence does not require a different result. The stolen items clearly were not attached to, nor a part of, the victim’s house. In Hamilton, our Supreme Court opined that the Legislature did not intend the burglary statute to be applied to an individual who, without the homeowner’s consent, enters an open yard with the intent to take a piece of fruit from a tree located in the yard. To accept the State’s suggestion that curtilage necessarily includes an item that touches (but is not attached) to the house would mean that a burglary of a dwelling would occur if an individual took a fruit from a tree in an open yard when the fruit happened to be touching the house. We similarly conclude that the Legislature did not intend the burglary statute to be so applied.

While the State’s evidence was insufficient to prove a burglary, it was sufficient to prove the lesser included offense of trespass. Section 924.34, Florida Statutes (2009), provides that when an appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment but direct the trial court to enter judgment for the lesser included offense. Accordingly, we reverse the judgment for burglary of a dwelling and remand with instructions to enter judgment on the offense of trespass.

Questions for Discussion

1. Curtilage is the area immediately surrounding the home and historically was considered to be part of the home. Why does the court conclude that the J.L. did not take items from the curtilage?

2. Why does the court conclude that J.L. was guilty of trespass rather than burglary? 3. J.L. allegedly stole a go-cart, a four-wheeler, and a skateboard. Would you convict him of burglary or of trespass and of theft?

Would you affirm or reverse Arbie’s conviction?

According to the indictment, the arson that Buckley was committing and during the course of which George House was killed, was the setting of the victim himself on fire. The issue that this raises is whether intentionally putting a flammable liquid on a person and then causing it to ignite on the person constitutes the crime of arson. Is that instead initially the crime of aggravated assault using fire as the deadly weapon, and then a murder either by deliberate design or with a depraved heart if the person dies? To answer this, the court examined the statutory elements of arson. There are several arson crimes. The indictment did not list which one allegedly was being committed by Buckley when she set her husband on fire. Some clearly are inapplicable, such as the setting of woods or other lands on fire. Arson in the first degree involves willfully and maliciously setting fire to or burning or causing to be burned or aiding, counseling or procuring the burning of any dwelling house, whether occupied, unoccupied or vacant. Arson in the third degree is defined as the willful and malicious setting fire to or burning or causing to be burned, any personal property of whatsoever class or character. Obviously, neither statute supports the charging of arson for someone who deliberately and directly sets a person on fire. A person is not a building nor personal property. The different forms of the crime of arson are all in a section of the Code for “Crimes Against Property.” Arson has been called both a crime against property and one against persons, as the primary protection being provided by criminalizing the burning of structures was to protect those occupying the building. Still, regardless of the interests being protected, the crime traditionally required the burning of a structure, starting with dwellings at common law and then expanding to other kinds of buildings. Here a structure did burn, namely the house trailer, but the indictment did not charge Buckley with killing her husband while burning down the trailer ((text taken directly from judgment of the court).

Would you convict the defendant of “criminal mischief to property”? How does this differ from spray-painting gang insignia or graffiti on the wall?

In this case the alleged facts are that the property of the defendant was bordered on two sides by fences “in need of painting and repair.” The defendant painted these two fence sides facing towards his property to improve the appearance of them as well as enhancing his property’s value. That was his stated purpose. The two fence owners peeved that this was done without permission “called the cops.” As a result the defendant was arrested, handcuffed, transported to police headquarters, booked, fingerprinted, had a mug shot taken and then turned over to Military Police for further detention after being given an appearance ticket by the Watertown Police Department. It appears that as heretofore indicated due to the failure to allege what damage, if any, was caused to these fence sides “in need of repair and painting,” the accusatory instrument was dismissed. Considering the fact that all the defendant did was apply paint to a fence side “in need of painting,” facing his property along two boundary lines done only to enhance their appearance and, in doing so, providing a protective coating against the elements to the benefit of the fence owners considering these “circumstances” it was an incident minimally serious in nature, not done with an intent to harm the fence owners, but rather, to improve the looks of the fences thus improving the look of the defendant’s property in particular and the neighborhood generally.

There is no apparent harm caused by this offense to the fences in question because, as heretofore observed by the Court, their appearance was improved to the benefit of all who could see them as compared to their appearance before when they were “in need of painting and repair” and the fence owners’ property having been given a coating of paint were better able to weather the elements. The defendant when questioned by the police explained his reasons for painting the sides of these fences and had the impression he had the right to do so as they faced towards his property. He said he only did so to improve their appearance and, in doing so, also enhance his property’s value. This admission of engaging in the conduct suggests not an intent to “intentionally damage property of another person” as an act of criminal mischief. Seen as such, this conduct was hardly an act of “malicious mischief” the statute is intended to apply to.

The defendant is a member of the U.S. Army, a homeowner concerned with his property’s value and otherwise a good citizen of this community. All of what he did was not done for a “malicious” purpose, but rather, to enhance the appearance of the fences as well as improve as a collateral benefit their ability to withstand the effects of the elements.

The Court does not find there was any evidence of “exceptionally serious misconduct” by the police officer; any “purpose and effect of imposing upon the defendant” a year in jail, three years’ probation, $ 1,000 fine, conditional discharge or unconditional discharge available to the Court after a plea to a class A misdemeanor considering circumstances of the incident.

The Court finds that in dismissing this case considering the “totality of the circumstances.” The “impact of a dismissal on the safety or welfare of the community” is di minis and there would be no impact upon the confidence of the public in the criminal justice system in granting a dismissal in this case considering the public through its elected legislators enacted this law to be applied by this Court whose judge the public elected expected in such circumstances that a dismissal in the interest of justice should be considered as a matter of public justice in such a case by the Judge.

The “attitude of complainants” is considered by the Court and as it is manifested by their calling the police and seeing the defendant arrested, handcuffed and taken to the police station from his home, their vindictiveness was satisfied. The Court finds “a judgment of conviction would serve no useful purpose” in this case as there was “no malicious” intent to damage the fences to bring the conduct within the charge of P.L. 140.00(1) and, in any event, no evidence of damage to either fence considering the pre existing condition being “in need of painting and repair” which prompted the defendant to add paint to them.

The Court finds that this is a case of where there is “no harm” then there is “no foul.” The defendant decided to paint two fence sides facing his property because both need “painting,” as well as “repairs,” trying to mitigate the effect of what he considered an eyesore on his property value. He did so without consulting the owners upon an unfounded assumption he could do so as the surfaces of the fence facing his property met a local municipal code requirement.

Robert Frost in “North of Boston” penned a now famous poem “Mending Wall” in which neighbors must once a year in the spring repair the stone wall on the boundary of their properties. The point made is that cooperation between neighbors to maintain this wall acknowledges to each the other’s respect for their respective interests in the structure as well as keeping their relationship to each other as neighbors in good “standing” as well.

In this case it would have been better had the defendant talked to the neighbor who owned these fences about a request to paint the sides facing his property as he was the one affected by the apparent need for a coat of paint at no cost to them. In doing so he would recognize their right to approve this project and understanding his reasons for wanting to do it. Whether they would have agreed to it or not, and what other recourse the defendant may have had if they could not so agree to his request to paint the fences, will not be known, but as Frost wrote “good fences make good neighbours” one would hope both sides might have agreed to it “as good neighbours.”

As it was, the police were called and the defendant arrested. In considering the ordeal imposed upon the defendant of being handcuffed, fingerprinted, photographed as a criminal and charged with a crime when the evidence is scant he engaged in “malicious mischief” due to a lack of intent to damage property as well as a lack of evidence of any damage to it by applying a coat of paint, the Court finds that this is a case that is qualified to be dismissed in the interest of justice.