By Darren Chaker
In People v. Yarbrough, the Court of Appeal, Second District, Case # B222399 [3/23/2011] further defined what portion of a building may be considered for purposes of burglary.
Under the reasonable-belief test, an unenclosed balcony is not part of the building for the purposes of burglary. Appellant climbed to the second floor balcony of a residence. The balcony was bordered by a waist-high railing and was separated from the living quarters of the residence by a sliding glass door which was open on this particular night. Awakened by his barking dog, the resident saw appellant standing on the outside of the railing and holding onto it.
The resident tried to push appellant off the balcony, and appellant jumped or fell and fled. Nothing was stolen. At appellant first degree burglary trial, the court instructed the jury with a modified version of CALCRIM No. 1700 that stated a person enters a building if some part of his body penetrates the area inside the outer boundary, which includes the area inside a balcony. The court also gave CALCRIM No. 1701 which explained that first degree burglary is the burglary of an inhabited house which, as amplified by the court, included any balcony that is attached to the house and functionally connected with it.
Convicted of first degree burglary, appellant argued instructional error. Disagreeing with People v. Jackson (2010) 190 Cal.App.4th 918, which held that the definition of a residence included the balcony, this court found error with the trial court's instructions. In defining the outer boundary of a building for purposes of burglary, the court held "a building's outer boundary includes 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." (People v. Valencia (2002) 28 Cal.4th 1, 11.)
Here, because the evidence showed appellant climbed onto the unenclosed balcony, which was not part of the residence's outer boundary, and did not enter the residence, at most, if his intent to enter the residence to commit a theft could be established, he is guilty of attempted burglary. The judgment was reversed.