People v. Moore

California Court of Appeal Dec 13, 1994 No. A063384Published

Before: King

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Holding. The court held that the insertion of a tool into a building constitutes an entry for the purposes of burglary, regardless of whether the tool is used to remove property, and that penetrating a screen door satisfies the entry element.

Issues

Whether an entry for burglary requires that an instrument be used to effectuate the underlying felony.
Whether the penetration of the airspace between a screen door and a wooden door constitutes an entry under Penal Code section 459.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Any kind of entry, partial or complete, direct or indirect, will satisfy the element of entry.”

“We find no plausible reason for holding that an entry by instrument must be for the purpose of removing property.”

“The penetration of a window screen constitutes entry within the meaning of section 459.”

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)).

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.

[491]

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.

People v. Moore

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KING, J.

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