Los Angeles County Ct.App. 2 B222399 Super. Ct. No. PA065170
The opinion of the court was delivered by: Kennard, J.
Burglary is committed when a person "enters any . . . building" with the intent of committing "larceny or any felony." (Pen. Code, § 459; further statutory references are to the Penal Code.) In People v. Valencia (2002) 28 Cal.4th 1, 11 (Valencia), this court held that a building is entered when the building's "outer boundary" is crossed. A building's outer boundary, Valencia said, encompasses "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." (Ibid.) An "unenclosed balcony," Valencia noted, would not satisfy that test because such a balcony cannot be "reasonably" viewed as being "part of the building's outer boundary." (Id. at p. 12, fn. 5, italics deleted.)
Here, defendant was charged with residential burglary after climbing onto a second-story apartment's private balcony, which was surrounded by a metal railing some four feet in height and accessible only through the single bedroom's sliding glass door. The trial court instructed the jury that such a balcony was within the apartment's outer boundary, and the jury convicted defendant. The Court of Appeal reversed, relying on a footnote in Valencia, supra, 28 Cal.4th 1, 12, stating that an "unenclosed balcony" is not within a dwelling's outer boundary. (The Court of Appeal did not explain why it considered the second-floor balcony in this case to be "unenclosed.")
We granted the Attorney General's petition for review and now reverse the Court of Appeal's judgment.
I. FACTS AND PROCEDURAL BACKGROUND
Salvador Deanda and his family lived in a one-bedroom unit on the second floor of an apartment building. The bedroom had a sliding glass door opening onto a balcony that was five feet wide by three feet deep and surrounded by a metal railing that Deanda, an adult, said came to his stomach. The balcony's floor was eight or nine feet above the ground.
On August 5, 2009, two bicycles were on the balcony and visible from the street. Around midnight, Deanda was awakened by the barking of his dog. He saw defendant standing on the balcony outside its railing. The toes of defendant's shoes protruded under the railing, and defendant's fingers were clutching the top of the railing. Deanda grabbed a stick and rushed at defendant, who either fell or jumped to the ground.
At defendant's trial for residential burglary (Pen. Code, §§ 459, 460, subd. (a)), the trial court instructed the jury on the elements of burglary under CALCRIM No. 1700, as follows: "A person enters a building if some part of his or her body or some object under his or her control penetrates the area inside the building's outer boundary." The court also instructed the jury that "[a] building's outer boundary includes the area inside a balcony" that is "attached to" an inhabited dwelling.
The jury convicted defendant of residential burglary, and the trial court sentenced him to six years in state prison. The Court of Appeal reversed for instructional error. Citing footnote 5 in Valencia, supra, 28 Cal.4th 1, 12, that an "unenclosed balcony" is not "part of a building's outer boundary," the Court of Appeal stated, without any explanation, that Deanda's private, second-floor, railing-enclosed balcony was "unenclosed," and that therefore defendant's entry onto that balcony did not constitute burglary.
II. The Crime of Burglary
Under the common law, burglary was an offense against a landholder's right of habitation. (3 LaFave, Substantive Criminal Law (2d ed. 2003) p. 212; Perkins & Boyce, Criminal Law (3d ed. 1982) p. 255.) The crime was defined as "the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony." (3 LaFave, supra, at pp. 205-206.) The word "dwelling" encompassed not only a building actually used for habitation but also any structure that was "within the curtilage or courtyard surrounding the house" and used in connection with the house. (Perkins & Boyce, supra, at p. 259.) The concern underlying the offense of burglary was that an intruder's entry into the curtilage of a dwelling would pose a "human risk," as "the dweller or some member of his household might hear a prowler" and then "go to investigate." (Id. at p. 260.)
In 1872, the California Legislature drew upon the common law concepts in codifying the crime of burglary. Section 459 now states that a "person who enters any . . . building . . . with intent to commit . . . larceny or any felony is guilty of burglary." Section 460 sets out two degrees of burglary: Burglary of an inhabited dwelling (residential burglary) is burglary of the first degree. (Id., subd. (a).) "All other kinds of burglary are of the second degree." (Id., subd. (b).) As under the common law, however, the essence of burglary is " ' "an entry which ...