PEOPLE v. MOORE

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Docket Number

Docket No. A063384.

Attorney(S)

COUNSEL George L. Mertens, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, and Jeffrey M. Bryant, Deputy Attorney General, for Plaintiff and Respondent.

Judges

Jeffrey King

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Smart Summary

Factual and Procedural Background

Claudell Moore was charged by information with first degree residential burglary under Penal Code section 459, along with prior felony and prison term allegations. The information was amended to add five prior prison terms. The alleged victims, Jacqueline Marquez and Derrick Augustine, both deaf, testified that Moore was observed attempting to enter their Castro Valley apartment by manipulating the screen door and the wooden door behind it. Moore was seen using a tire iron wrapped in a green towel to pry the door open, which opened about an inch. Deputy Sheriff Patrick Cassidy responded to a 911 call, blocked Moore’s car from leaving, and found a tire iron and a green sweat top in the vehicle matching the pry marks on the door. A jury convicted Moore of first degree burglary. He admitted four prior convictions; two other allegations were dismissed. The court imposed an aggregate sentence of nine years. On appeal, Moore challenged the jury instructions on the "entry" element of burglary and contended insufficient evidence supported the implied finding of entry.

Legal Issues Presented

Whether the jury instruction on the "entry" element of burglary, which allowed entry to be established by any part of the defendant's body or an instrument penetrating the area inside the screen door, correctly stated the law.
Whether sufficient evidence supported the jury's implied finding that Moore entered the premises for purposes of first degree burglary.

Arguments of the Parties

Appellant's Arguments

The jury instruction was legally incorrect because entry cannot be established by the use of a tool alone unless that tool is used to effectuate the underlying felony.
The violation of the airspace between the screen door and the wooden door does not constitute entry under the burglary statute.

Respondent's Arguments

The instruction, based on established precedent, correctly allowed that entry may be made by any part of the body or an instrument penetrating the protected area inside the screen door.
Entry can be established by the insertion of a tool or instrument, even if the tool is not used to remove property but merely to facilitate entry.
The penetration of the airspace between the screen and the door constitutes sufficient entry for burglary purposes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Nible (1988) 200 Cal.App.3d 838	Jury instruction approved that any kind of entry, partial or complete, direct or indirect, by body or instrument, satisfies the entry element of burglary; penetration of a window screen constitutes entry.	The court upheld the instruction on entry and relied on Nible to hold that the screen door’s penetration constituted entry.
People v. Wise (1994) 25 Cal.App.4th 339	Entry occurs if any part of the intruder’s body or an instrument wielded by the intruder is inside the premises.	The court cited Wise to confirm that an instrument can constitute entry even if used only to facilitate entry.
People v. Ravenscroft (1988) 198 Cal.App.3d 639	Use of an instrument to facilitate entry, even if not used to complete larceny, satisfies burglary entry element.	Supported the principle that an instrument need not be used to remove property to constitute entry.
People v. Walters (1967) 249 Cal.App.2d 547	Entry may be made by an instrument inserted for the purpose of committing the felony.	The court rejected Moore’s argument that entry by instrument must be for removing property, distinguishing Walters and affirming entry by instrument alone.
People v. Osegueda (1984) 163 Cal.App.3d Supp. 25	Insertion of tools alone, not used to remove property, can establish burglary entry.	Though not binding, the court found Osegueda persuasive in rejecting out-of-state cases requiring instrument use to consummate criminal intent.
People v. Brown (1992) 6 Cal.App.4th 1489	Entry onto an unenclosed front porch does not constitute entry into residence for certain statutes.	Distinguished Brown to emphasize the screen door here was more analogous to a window screen constituting entry than an unenclosed porch.
Walker v. State (1879) 63 Ala. 49	Instrument intrusion alone is not an entry unless used to consummate criminal intent.	The court rejected this out-of-state precedent as inconsistent with California law.

Court's Reasoning and Analysis

The court analyzed the legal definition of "entry" under California Penal Code section 459, focusing on whether penetration by an instrument alone suffices. It relied on established California precedent holding that any part of the defendant’s body or an instrument under their control penetrating inside the protected area constitutes entry. The court rejected Moore’s argument that the instrument must be used to effectuate the underlying felony beyond facilitating entry, citing People v. Walters and People v. Osegueda to support this view. The court further distinguished the case from out-of-state authority requiring a more stringent showing of instrument use. Regarding the physical facts, the court found the evidence that the tire iron penetrated the airspace between the screen door and the wooden door sufficient to satisfy the entry element. The court also noted the similarity of the screen door to a window screen, which prior precedent treats as constituting entry, and distinguished it from unenclosed porches, which do not constitute entry. Accordingly, the jury instruction given correctly reflected the law, and the evidence supported the implied finding of entry.

Holding and Implications

The court affirmed the judgment of conviction for first degree burglary. The holding confirms that under California law, entry for burglary purposes may be established by penetration of the premises by an instrument or tool, even if the instrument is used only to facilitate entry rather than to complete the underlying felony. The decision upholds the validity of jury instructions to that effect and affirms that violation of the airspace between a screen door and an inner door constitutes sufficient entry. There were no new precedents set; the ruling applies existing law to the facts and resolves the appeal in favor of the prosecution.

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THE PEOPLE, Plaintiff and Respondent, v. CLAUDELL MOORE, Defendant and Appellant.

OPINION

KING, J.

Claudell Moore appeals from a judgment of conviction for first degree burglary. He contends the jury was improperly instructed on the "entry" element of the offense, and insufficient evidence supported its implied finding of entry.

An information charged Moore with residential burglary (Pen. Code, § 459) and a prior serious felony conviction (§ 667 subd. (a)). The information was later amended to add five prior prison terms (§ 667.5, subd. (b)).

All further statutory references are to the Penal Code.

At trial, it was established that the alleged victims, Jacqueline Marquez and Derrick Augustine, are both deaf. Marquez testified she noticed Moore knocking on the front door of their Castro Valley apartment at approximately 11 a.m. on May 26, 1993. The apartment has a screen door in front of a wooden door. The screen door locks, but was not locked on that day. In order to reach the wooden door, it is necessary to pull back the screen door. After Marquez awakened Augustine, the couple noticed Moore attempting to open the door by turning the knob. Moore left the door and went to a car, returning with a green "towel" wrapped around his hand and a tire iron. Moore used the tire iron on the door. Augustine testified he saw the tip of the tool come through the door; Marquez testified the door opened about an inch.

Alameda County Deputy Sheriff Patrick Cassidy responded to the couple's 911 call. As he entered the driveway, he positioned his car to prevent Moore from leaving the scene. Cassidy discovered a tire iron and a green sweat top in the car Moore was driving. The edge of the tire iron matched pry marks on the apartment door.

A jury found Moore guilty of first degree burglary. He admitted four of the priors, and the court dismissed the remaining two allegations. The court imposed an aggregate sentence of nine years.

"Every person who enters any . . . apartment . . . with intent to commit . . . any felony is guilty of burglary." (§ 459.) On appeal, Moore challenges only the implied finding that he entered the Marquez/Augustine apartment.

(1) The trial court delivered the following special instruction requested by the prosecutor and approved in People v. Nible (1988) 200 Cal.App.3d 838, 843, and footnote 2 [246 Cal.Rptr. 119]: "`"Any kind of entry, partial or complete, direct or indirect, will satisfy the element of entry. [¶] The entry may be made by any part of the body or by the use of an instrument or tool. [¶] In order for there to have been an entry, a part of the defendant's body or some instrument, tool or other object under his control must have penetrated the area inside where the screen was normally affixed in the window frame in question."'" Moore claims the instruction did not reflect the law because (a) entry cannot be made by a tool alone unless that tool is used to effectuate the underlying felony, and (b) violation of the airspace between the screen and the door does not constitute entry.

"It is well settled that an entry occurs for purposes of the burglary statute if any part of the intruder's body, or a tool or instrument wielded by the intruder is `inside the premises.' . . ." ( People v. Wise (1994) 25 Cal.App.4th 339, 345 [30 Cal.Rptr.2d 413], citations omitted; see also, People v. Nible, supra, 200 Cal.App.3d at p. 843.) "One can commit burglary even though the instrument in question is used merely to facilitate entry rather than to complete the larceny. . . ." ( People v. Ravenscroft (1988) 198 Cal.App.3d 639, 644 [ 243 Cal.Rptr. 827], citation omitted.)

Moore contends this well-settled authority is based on a misreading of People v. Walters (1967) 249 Cal.App.2d 547, 551 [ 57 Cal.Rptr. 484], in which the court stated: ". . . it has been established that the entry need not be [by] any part of the body, but that an entry may be made by an instrument, where the instrument is inserted for the purpose of committing the felony."Unlike the sources on which it relied (a 1958 treatise and two 19th century cases from other jurisdictions), however, the Walters court did not expressly state that unless the instrument is "used in some other way or manner to consummate the criminal intent, the intrusion of the instrument is not of itself an entry." ( Walker v. State (1879) 63 Ala. 49, 52.) On the contrary, the Walters court "upheld a conviction for burglary where the only evidence of entry was the insertion of tools which were not being used to remove property." ( People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 31 [210 Cal.Rptr. 182].) Like the Osegueda court, "We reject the decisions of out-of-state jurisdictions which differentiate between an entry by body and by instrument. We find no plausible reason for holding that an entry by instrument must be for the purpose of removing property. We find no California authority for contrary reasoning." ( Ibid.)

Osegueda, an opinion published by the superior court appellate department, is not, of course, binding precedent, but ". . . the persuasive value of such opinions has been constantly recognized." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 777, pp. 747-748.)

In People v. Nible, supra, 200 Cal.App.3d at page 846, the court held "the penetration of a window screen constitutes entry within the meaning of section 459." Applying the reasonable-expectation-of-protection test it had formulated in Nible to an "ordinary, unenclosed front porch," the same court later concluded "entry onto the porch cannot constitute entry into defendant's residence for purposes of section 198.5." ( People v. Brown (1992) 6 Cal.App.4th 1489, 1497 [ 8 Cal.Rptr.2d 513], fn. omitted.) For our purposes, the screen door at issue here more closely resembles the window screen in Nible than the front porch in Brown, especially in light of the Nible court's express reliance on the rule that "`[t]he opening of a screen door or window is deemed a burglarious breaking.'" ( Nible, supra, 200 Cal.App.3d at p. 845, quoting 13 Am.Jur.2d, Burglary, § 19, p. 331, italics added.)

Section 198.5 encodes the presumption that a person using force intended or likely to cause death or great bodily injury against another "who unlawfully and forcibly enters" a residence held a reasonable fear of imminent peril of death or great bodily injury.

The challenged "entry" instruction correctly reflected current California law. Moore admits the evidence established the tire iron violated the airspace between the screen and the door. Under a proper reading of the law, this constitutes sufficient evidence of entry for the purposes of the burglary statute.

He also recognizes the evidence that the tire iron violated the plane of the door itself.

The judgment is affirmed.

Peterson, P.J., and Haning, J., concurred.

Appellant's petition for review by the Supreme Court was denied March 2, 1995. Mosk, J., was of the opinion that the petition should be granted.