People v. Valencia

KENNARD, J., Dissenting.

Under California law, one who “enters” a building with the intent to commit theft or a felony is guilty of burglary. (Pen. Code, § 459.) 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.

I

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.” (Italics added.) 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.’ (Woods v. Young (1991) 53 Cal.3d 315, 323 [ 279 Cal.Rptr. 613 , 807 P.2d 455 ].) ‘To ascertain intent, we look first to the words of the statutes’ (ibid.), ‘giving them their usual and ordinary meaning.’ (Da Fonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [ 7 Cal.Rptr.2d 238 , 828 P.2d 140 ].)” (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [ 36 Cal.Rptr.2d 563 , 885 P.2d 976 ].) 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. . . .” (5 Oxford *18 English Dict. (2d ed. 1989) p. 288.) Another states, more simply, “To come or go into.” (American Heritage Dict. (4th ed. 2000) p. 595.) Similarly, a respected legal dictionary defines “entry,” as used in criminal law, as “[t]he unlawful coming into a building to commit a crime.” (Black’s Law Dict. (7th ed. 1999) p. 554, italics added.)

At common law, the entry requirement for burglary was construed consistently with these dictionary definitions. For example, in Reg. v. Meal (1848) 3 Cox C.C. 70, the defendant cut a hole in a window large enough for him to climb through. In ordering him acquitted of burglary, the British court explained that “the mere circumstance that the glass was broken, and the window cut to an extent large enough to admit a man’s head and shoulders, was not enough to constitute an actual entry without positive proof that a portion of the body was within the house.” (Id. at p. 71.)

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.’ ” (People v. Gauze (1975) 15 Cal.3d 709, 715 [ 125 Cal.Rptr. 773 , 542 P.2d 1365 ]; see also People v. Wilson (1969) 1 Cal.3d 431, 440 [ 82 Cal.Rptr. 494 , 462 P.2d 22 ] [“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.”]; Model Pen. Code & Commentaries, Introductory Note to art. 221, p. 59 [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.

*19 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. 1

*20 II

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.” (Maj. opn., ante, at p. 11.) 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.

III

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 *21 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.

The majority broadly asserts that my conclusion “is inconsistent with a substantial majority of the California and out-of-state decisions” cited in the majority opinion. (Maj. opn., ante, at p. 15, fn. 7.) Hardly.

Five cases the majority cites (People v. Mazer (1994) 208 A.D.2d 956 [ 617 N.Y.S.2d 892 ]; State of Iowa v. Conners (1895) 95 Iowa 485 [ 64 N.W.2d 295 ]; Collins v. Commonwealth (1912) 146 Ky. 698 [ 143 S.W. 35 ]; State v. Henderson and Younger (1908) 212 Mo. 208 [ 110 S.W. 1078 ]; and State v. Simpson (R.I. 1992) 611 A.2d 1390 ) have no bearing on this case. In Mazer the issue was whether the evidence was sufficient to show that the defendant in that case intended to steal from the house he burglarized, and in the other four cases the issue was whether a “breaking” had occurred. In none of those cases was the definition of the term “enter” at issue, as it is here.

The majority mentions three other cases (Bowers v. State (1982) 164 Ga.App. 462 [ 297 S.E.2d 359, 360 ]; State v. Jenkins (Mo.Ct.App. 1987) 741 S.W.2d 767 ; People v. Wise (1994) 25 Cal.App.4th 339 [ 30 Cal.Rptr.2d 413 ]) holding that an entry through a closed door into an enclosed porch is a burglary. I see no conflict between those holdings and my conclusion here. Nor do I see any inconsistency between my conclusion and the result in People v. Moore (1994) 31 Cal.App.4th 489 [ 37 Cal.Rptr.2d 104 ] (upholding a burglary conviction of a defendant who opened a screen door and thrust a tire iron through the plane of the wooden door behind it), although certain language in Moore’s cursory discussion on the issue of entry appears contrary to my views in this case.

In support of its holding, the majority also cites two Kansas cases (State v. Crease (1982) 230 Kan. 541 [ 638 P.2d 939 ]; State v. Gatewood (1950) 169 Kan. 679 [ 221 P.2d 392 ]) and two Texas cases (Woods v. State (Tex.App. 1991) 814 S.W.2d 213 ; Ortega v. State (Tex.Crim.App. 1981) 626 S.W.2d 746 ) that appear at first glance to be contrary to my conclusion here. I find them unpersuasive because they contain only the barest analysis and they do not at all consider the entry requirement’s purpose of preventing violent encounters *20 between the intruder and the building’s occupants. Moreover, courts in other states have reached results contrary to those decisions, which reflect the views of the majority in this case. (State v. McCall (1843) 4 Ala. 643 [no entry when the defendant broke open the shutters of a window and put his hand inside them, but outside the glass]; Minter v. State (1903) 71 Ark. 178 [ 71 S.W. 944, 945 ] [same]; State v. Carter (Mo.Ct.App. 1976) 541 S.W.2d 692 [no entry when the defendant opened a latched screen door but was unable to get within an inner door]; accord, State v. Pigques (Mo. 1958) 310 S.W.2d 942 .)

Finally, the majority cites People v. Nible (1988) 200 Cal.App.3d 838 [ 247 Cal.Rptr. 396 ], a California Court of Appeal decision. Nible addresses the question of whether an entry occurs when a defendant goes into the area between a screen and an open window, unlike this case, where the window was closed. I express no view on whether the result in Nible is correct. I note, however, that Nible defines the term “enter” as passing through a structure, the composition of which “is such that a reasonable person would expect some protection from unauthorized intrusions” (id. at p. 844), a definition the majority rejects as unsound. (Maj. opn., ante, at pp. 11-12.)