APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio Barreto, Jr., Judge. Affirmed. (Los Angeles County Super. Ct. No. SA070741)
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PUBLICATION
Kerwin Jackson appeals from the judgment entered following his conviction by jury on one count of first degree burglary. (Pen. Code, § 459.) Appellant contends that the jury instructions on the elements of burglary erroneously imposed a presumption that the balcony in this case qualified as a building for purposes of Penal Code section 459. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On March 25, 2009, around 12:30 a.m., Ericson Monsalud was sitting on his sofa in his apartment when he heard a loud sound like a plate breaking. Monsalud was the manager of the apartment building, so he got up to investigate. Monsalud saw appellant on his neighbor Henry Schipper's balcony, halfway inside Schipper's apartment and halfway on the balcony. It appeared to Monsalud that appellant was going into Schipper's apartment.
Monsalud looked at appellant and asked, "'What are you doing?'" Appellant looked at him in surprise but did not respond, so Monsalud went inside his apartment and got his phone to call the police. After Monsalud got his phone, he went back outside to see what appellant was doing. When Monsalud opened his door and stepped outside, appellant jumped over the brick wall and stood face to face with Monsalud, about twelve inches away. Monsalud recognized him as the man he had seen on Schipper's balcony. Monsalud told appellant, "'You better split. Cops are coming.'" Appellant told him he was looking for someone named Belinda and left. Monsalud had never seen the man before, and he did not know anyone named Belinda. After appellant left, Monsalud called the police and told them what was happening.
While Monsalud was on the phone with the police, he went outside and watched appellant walk down the street and turn into another apartment complex, then exit and walk toward Venice Boulevard; Monsalud continued to describe appellant's movements to the police. Monsalud then saw a bus coming and told the police that appellant was going to get on the bus, although he did not actually see appellant board the bus. Monsalud later identified appellant to the police.
Henry Schipper testified that, on the night of the incident, he was awakened around 1:00 a.m. by a telephone call from Monsalud. Monsalud left a message saying that there was a burglar in Schipper's apartment. Schipper looked around his apartment and noticed that the sliding glass door to his veranda was open, even though he thought he had closed it when he went to bed. Schipper heard some noises downstairs. Schipper did not notice that anything was broken, and nothing was missing from his apartment.
Schipper described his veranda or balcony as follows: "I have a one-bedroom apartment, and the main room is a living room/dining room combined space. And one side of that, one wall of that, a big chunk of it opens out onto a veranda or a porch area. There's a sliding glass door, and there's a sliding screen door that opens the way onto that veranda." Schipper further stated that it was a private balcony, not shared with anyone else, and that there was no direct access to the balcony other than through his apartment. Schipper had placed a wooden lattice piece against the edge of the balcony in order to create more privacy because there was an outdoor stairway on the other side of the balcony. Schipper testified that it was possible to climb over a fence or to climb over a concrete barrier from Monsalud's landing to get onto his balcony. Schipper had a few plants, a coffee table, and a larger table on the balcony.
Betty McClerkin testified that she was driving a bus on Venice Boulevard at the time of the incident and that she saw appellant running for the bus, so she stopped to pick him up. About two minutes after appellant boarded the bus, the police stopped the bus, so McClerkin "secured the bus and exited, walked toward the police. And they asked how many people were on the bus, and I told them two. And they approached the bus and boarded the bus." McClerkin told the police that appellant "sat down right at the front doors as soon as he boarded the bus, and he sat right at the very front seat."
Los Angeles police officer Brian Hadley testified that he was on patrol when he heard the radio call about a burglary suspect. Hadley saw someone who matched the description of the suspect running toward a bus and waving the bus down. Hadley and his partner stopped the bus, asked McClerkin how many people were on the bus, and asked the two people on the bus to step out of the bus. The police detained appellant but let the bus driver and the other passenger go because they did not match the description of the burglary suspect. Appellant gave the police his name and address and told them he was going home after visiting a friend. After Monsalud identified appellant as the suspect, appellant was taken to the police station. Los Angeles police officer Stephen Webber searched the seat of the bus where McClerkin said appellant had been sitting and found a flashlight behind the seat.
Appellant was charged by information with one count of first degree burglary.*fn1 (Pen. Code, § 459.) At trial, appellant did not testify or present any witnesses.
Following the close of evidence, the parties disputed a jury instruction submitted by the prosecution that, for purposes of defining residential burglary, a house includes a balcony. After hearing argument on the issue, the court decided to instruct the jury that appellant could be guilty of burglary if the prosecution proved that he entered a building or attached balcony with the intent to commit theft.
Defense counsel objected to the instructions, arguing that whether the balcony was part of the structure was a jury question. Defense counsel accordingly argued that the court should not include the word "balcony" in the instructions and "simply leave the word 'structure' and have the jury decide whether or not a balcony is part of a structure." The court reasoned, however, that a ...