Los Angeles County Super. Ct. No. PA065170 APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Reversed.
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Defendant Jammal Yarbrough appeals from a judgment entered following a jury trial in which he was convicted of first degree burglary for having entered a second-floor unenclosed balcony of an apartment with intent to commit a theft. He contends the court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute and that the facts disclosed only an attempted burglary. We agree because the Supreme Court in People v. Valencia (2002) 28 Cal.4th 1 (Valencia) stated "the outer boundary of a building for purposes of burglary . . . does not encompass . . . [an] unenclosed balcony . . . ." (Valencia, at p. 12, fn.5.)
On the night of August 5, 2007, defendant climbed to the second-floor balcony of the residence of Salvador Deanda. The balcony was bordered by a waist-high wrought iron railing, with a space between the railing and the floor. It was separated from Deanda's living quarters by a sliding glass door that was open. Awakened by the barking of his dog, Deanda saw defendant standing on the balcony outside the railing, holding onto the railing. When Deanda tried to push defendant off the balcony, defendant held onto the railing. He then fell or jumped down, and fled. Though Deanda's bicycles were on the balcony, nothing was stolen.
Defendant was convicted of first degree burglary.
The trial court instructed the jury on the elements of burglary using CALCRIM No. 1700, which states that burglary is committed when a person enters a "building" with the intent to commit a felony. The instruction informs the jury that a person "enters" a building if some part of his or her body "penetrates the area inside the building's outer boundary." But the trial court modified an optional paragraph of the instruction to read, "A building's outer boundary includes the area inside a balcony." (Italics added.)
The trial court also instructed the jury using CALCRIM No. 1701, which explains that first degree burglary is the burglary of an inhabited house, which "includes any (structure/garage/office/_____) that is attached to the house and functionally connected with it." When it read the instruction to the jury the trial court inserted the word "balcony" into the blank, so that the instruction read: "A house includes any balcony that is attached to the house and functionally connected with it." During closing argument, the prosecutor told the jury, "The entry is complete as soon as some part of his body crosses into that area inside the outer boundary, which we know is the area inside of the balcony. As soon as a piece of his body crosses into that area, the entry is complete."
Defendant contends the trial court effectively compelled the jury to find him guilty by erroneously instructing that a balcony constitutes the outer boundary of a house. He argues that a balcony is not necessarily part of an inhabited residence as a matter of law, and that the facts disclosed, at most, an attempted burglary. We agree because an unenclosed balcony is not part of a building for the purposes of the burglary statute.
Preliminarily, the People contend defendant has waived this issue by failing to object to the instruction in the trial court. We disagree. Failure to object to an instruction does not waive a claim on appeal that the instruction was an incorrect statement of the law. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
"'[A] jury's verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof . . . .'" (People v. Figueroa (1986) 41 Cal.3d 714, 726.)
"The crime of burglary is committed when a person 'enters any . . . building,' including a 'house,' 'with intent to commit . . . larceny or any felony.' (§ 459 . . . .) Burglary may be of the first or second degree, but in either event involves an entry into a building or other specified structure." (Valencia, supra, 28 Cal.4th at p. 6, fns. omitted.)
In Valencia, the Supreme Court was called upon to decide 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." (Valencia, supra, 28 Cal.4th at pp. 3-4.) In concluding it does, the high court adopted a "reasonable belief test" in defining the outer boundary of a building for purposes of burglary. "Under such a test, . . . a building's outer boundary includes any element that encloses an area into ...