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Christopher Magness v. the Superior Court of

June 7, 2012


Court: Superior County: Sacramento Judge: Allen Sumner and Ernest W. Sawtelle Super. Ct. No. 10F04832 Ct.App. 3 C066601

The opinion of the court was delivered by: Liu, J.

Sacramento County

We granted review to decide whether a person standing in the driveway of a residence who uses a remote control to open a motorized garage door has entered the residence within the meaning of the burglary statute. For the reasons that follow, we hold that using a remote control to open a garage door does not constitute an entry into the residence. On these facts, defendant may be charged with attempted burglary, but he cannot be charged with a completed burglary.


Defendant Christopher Magness was charged in a felony complaint with attempted first degree burglary of an inhabited dwelling (Pen. Code, §§ 664, 459, 460, subd. (a); further undesignated statutory references are to this code) and second degree burglary of an automobile (§§ 459, 460, subd. (b)). Deputy Sheriff Mark Kuzmich testified at the preliminary hearing that on the evening of July 24, 2010, Timothy Loop was at home with his wife when he heard the garage door of their house opening. Loop ran into the garage and saw defendant standing near the end of the driveway. When defendant fled, Loop chased him on a bicycle and saw him enter a residence. Loop summoned Deputy Kuzmich, who arrested defendant.

Loop and Deputy Kuzmich returned to Loop's house and found the remote control for the garage door near the end of the driveway where defendant had been standing. Loop had locked the remote control in his car, which was parked in the driveway. The door seal on one of the car's windows had been "peeled back a little bit" and the window "was down a couple of inches."

The prosecutor at the preliminary hearing argued that defendant had committed a completed burglary of the residence. The magistrate agreed, reasoning that opening the garage door constituted an entry into the residence. The prosecutor filed an information charging defendant with a completed residential burglary, and the superior court denied defendant's motion to reduce the charge to attempted burglary. The Court of Appeal granted defendant's petition for writ of prohibition, ruling that the evidence adduced at the preliminary hearing established no more than an attempted residential burglary because defendant did not enter the garage. We granted the prosecution's petition for review.


A person who "enters any house . . . with intent to commit . . . larceny or any felony is guilty of burglary." (§ 459.) It has long been settled that the slightest entry by any part of the body or an instrument is sufficient: "As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarous entries." (4 Blackstone's Commentaries 227, fn. omitted.) This court has recognized that "a burglary may be committed by using an instrument to enter a building -- whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well. Thus, using a tire iron to pry open a door, using a tool to create a hole in a store wall, or using an auger to bore a hole in a corn crib is a sufficient entry to support a conviction of burglary." (People v. Davis (1998) 18 Cal.4th 712, 717-718 (Davis).)

For an entry to occur, a part of the body or an instrument must penetrate the outer boundary of the building. (People v. Valencia (2002) 28 Cal.4th 1, 10-11 (Valencia).) "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." (Id. at p. 11.)

In People v. Osegueda (1987) 163 Cal.App.3d Supp. 25 (Osegueda), for example, the court found that the defendant had entered an electronics store for purposes of burglary by using tools to create a small hole in the wall. Osegueda and his four accomplices were arrested at 2:30 a.m. outside the electronics store. " '[A] three-foot by four-foot section of the wall had been removed and a small six by four to five inch hole existed in the inner wall leading into Rees Electronics. One could see into Rees Electronics through the hole.' " (Id. at p. Supp. 28.) "Instruments were discovered adjacent" to the hole. (Id. at p. Supp. 29.) The Court of Appeal held that this was sufficient evidence to support the jury's implicit finding that "the air space of Rees Electronics was indeed penetrated" and thus the defendant had entered the store. (Id. at p. Supp. 32.)

The Court of Appeal in People v. Ravenscroft (1988) 198 Cal.App.3d 639 (Ravenscroft), applied this "air space test" to hold that the defendant had entered two banks for purposes of burglary by inserting a stolen automatic teller machine (ATM) card into two ATMs that were "mounted inside the banks and secured flush with the exterior walls of those banks." (Ravenscroft, at p. 641.) However, we disapproved the decision in Ravenscroft in Davis, supra, 18 Cal.4th at page 722, footnote 5, in which we held that inserting a forged check into a chute in the walk-up window of a check-cashing business did not constitute an entry for purposes of burglary. (Id. at p. 722.) Although we agreed with the Ravenscroft court "that the ATM card in that case was inserted into the air space of the ATM" (Davis, at p. 722, fn. 5), we concluded that this was not an entry for purposes of burglary because neither that act nor inserting the forged check into the chute in Davis "violates the occupant's possessory interest in the building as does using a tool to reach into a building and remove property." (Davis, at p. 722.) We explained: "Inserting a stolen ATM card into the designated opening in an ATM is markedly different from the types of entry traditionally covered by the burglary statute, as is passing a forged check through a chute in a walk-up window. In each situation the defendant causes an object to enter the air space of a building, but it is not apparent that the burglary statute was meant to encompass such conduct. It is important to establish reasonable limits as to what constitutes an entry by means of an instrument for purposes of the burglary statute. Otherwise the scope of the burglary statute could be expanded to absurd proportions." (Id. at p. 719.)

Our opinion in Davis quoted our observation in People v. Gauze (1975) 15 Cal.3d 709 that " '[a] burglary remains an entry which invades a possessory right 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.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself." (Davis, supra, 18 Cal.4th at p. 721, quoting People v. Gauze, 15 Cal.3d at pp. 714, 715.)

Subsequently, the Court of Appeal in People v. Calderon (2007) 158 Cal.App.4th 137 (Calderon) held that kicking in the door of a residence constituted an entry for purposes of burglary. The defendant and two accomplices went to the victim's home to collect a debt. One of the defendant's accomplices "kicked in the victim's door, but before anyone in the group had gone inside, the victim came running out. Defendant tried to stab the victim ...

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