People v. Davis

• Citation: 76 Cal.Rptr.2d 770,958 P.2d 1083,18 Cal.4th 712
• Decision Date: 30 July 1998
• Docket Number: No. S058743,S058743
• Court: United States State Supreme Court (California)
• Parties: , 958 P.2d 1083, 98 Cal. Daily Op. Serv. 5886, 98 Daily Journal D.A.R. 8209 The PEOPLE, Plaintiff and Respondent, v. Michael Wayne DAVIS, Defendant and Appellant

Page 770

76 Cal.Rptr.2d 770

18 Cal.4th 712, 958 P.2d 1083, 98 Cal. Daily Op. Serv. 5886,

98 Daily Journal D.A.R. 8209

The PEOPLE, Plaintiff and Respondent, v. Michael Wayne DAVIS, Defendant and Appellant.

No. S058743.

Supreme Court of California

July 30, 1998.

George O. Benton, under appointment by the Supreme Court, Santa Rosa, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, Chief Justice.

Defendant was convicted of forgery, receiving stolen property, and burglary, based upon evidence that he presented a stolen and forged check to the teller at a check-cashing business by placing the check in a chute in a walk-up window. Defendant maintains that the burglary conviction must be reversed because he did not enter the check-cashing facility. For the reasons that follow, we agree.

I

On May 27, 1995, defendant approached the walk-up window of a check-cashing business named the Cash Box and presented a check to the teller by placing the check in a chute in the window. The teller later described the chute as follows: "It has a handle, and it opens out like a flap. It opens out, and they put the check in. They pass the check through." The check was drawn on the account of Robert and Joan Tallman, whose names were imprinted on the check, and was payable in the amount of $274 to Mike Woody, a name defendant sometimes used. The check was signed with the name Robert Tallman.

The teller placed a small, white, oval sticker on the back of the check, passed the check back to defendant, and asked him to place his thumbprint on the sticker and endorse the check. Defendant placed his thumbprint on the sticker, signed the back of the check with the name Michael D. Woody, and passed the check back to the teller, using the chute.

The teller telephoned Robert Tallman, who denied having written the check. Tallman later discovered that a group of checks, including this one, had been stolen from his automobile. The teller placed Tallman on hold and telephoned the police. An officer arrived within minutes and arrested defendant, who still was waiting at the window. At the police station, the police directed defendant to give several examples of his handwriting by repeatedly signing the name "Robert Tallman."

At trial, Tallman testified that neither the signature nor any of the other writing on the check was his.

Defendant was convicted of forgery (Pen.Code, § 470), ¹ burglary (§ 459), and receiving stolen property (§ 496, subd. (c)). Defendant waived his statutory right to a jury trial as to the truth of the prior prison term allegation, and after a brief hearing the trial court found true the allegation that defendant previously had been convicted of a felony for which he had served a prison term. (§ 667.5, subd. (b).) Defendant was sentenced on the forgery count to the upper term of three years in prison, plus an additional year for the prior prison term enhancement, for a total term of four years in prison. Defendant was sentenced on the burglary count to a concurrent term of three years in prison, and on the receiving stolen property count to a concurrent term of three years in prison. The Court of Appeal affirmed the judgment. We granted review to determine whether there was sufficient evidence to support the conviction for burglary.

II

Under section 459, a person is guilty of burglary if he or she enters any building (or other listed structure) with the intent to commit larceny or any felony. ² We must determine whether the Legislature intended the term "enter," as used in the burglary statute, to encompass passing a forged check through a chute in a walk-up window of a check-cashing or similar facility.

The burglary statutes do not define the term "enter." In the present case, the Attorney General conceded at oral argument that no part of defendant's body entered the building, but it long has been established that a burglary also can be committed by using an instrument to enter a building.

In his Commentaries on the Laws of England, Sir William Blackstone stated regarding the elements of burglary: "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 burglarious entries." (4 Blackstone's Commentaries 227.) But the common law drew a puzzling distinction. An entry by instrument was sufficient for burglary only if the instrument was used to commit the target larceny or felony. Insertion of an instrument for the sole purpose of gaining entry to the building did not constitute burglary.

The common law drew no such distinction if any part of the defendant's body entered the building. As Rollin Perkins observes in his textbook on Criminal Law: "Where it is a part of the body itself, its insertion into the building is an entry, within the rules of burglary, whether the purpose was to complete the felonious design or merely to effect a breaking. Thus, if the miscreant should open a window too small to admit his body, and should insert his hand through this opening merely for the purpose of unlocking a door, through which he intends to gain entrance to the building, he has already made an 'entry' even if he should get no farther. But where a tool or other instrument is intruded, without any part of the person being within the house, it is an entry if the insertion was for the purpose of completing the felony but not if it was merely to accomplish a breaking. If the instrument is inserted in such a manner that it is calculated not only to make a breach but also to accomplish the completion of the felonious design, this constitutes both a breach and an entry." (Perkins, Criminal Law (3d ed.1982) ch. 3, pp. 253-254, fns. omitted.) An illustrative case cited by Perkins is Walker v. State (1879) 63 Ala. 49, in which the defendant bored a hole through the floor of a corn crib, caught the shelled corn in a sack as it flowed through the hole, then sealed the hole using a corn cob. The entry of the bit of the auger into the corn crib was held to be a sufficient entry for purposes of burglary, because the instrument was used both to effect entry and to accomplish the larceny.

Although many jurisdictions adhere to the rule that entry by means of an instrument is sufficient for burglary only if the instrument was used to commit the intended larceny or felony (compare State v. Ison (Alaska Ct.App.1987) 744 P.2d 416, 419, with Hebron v. State (1993) 331 Md. 219, 627 A.2d 1029, 1038), the reason for this rule is not clear, and California courts have declined to adopt it.

In People v. Walters (1967) 249 Cal.App.2d 547, 57 Cal.Rptr. 484, the Court of Appeal purported to apply the rule that an entry by instrument must be for the purpose of committing the intended crime, but held nevertheless that a burglarious entry had occurred where the defendants were found on the roof of a market near a vent, the cover of which had been removed and through which a rope had been lowered into the restroom of the market. A grate on the restroom ceiling had been broken, and some tools were found lying on the broken grate, but there was nothing to suggest that these instruments were being used to accomplish the intended larceny. Nevertheless, the Court of Appeal held: "The presence of these items in the market's interior and the discovery of the instruments nearby sustain the inference that hands and tools manipulated by appellants effected an entry which constituted the crime of burglary." (Id. at p. 551, 57 Cal.Rptr. 484.)

In People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 210 Cal.Rptr. 182, burglars were apprehended after they had succeeded in creating a small hole in the wall of an electronics store. It reasonably could be inferred that, in creating the hole in the wall, some portion of the tools had entered the building, but that the entry of these implements was not for the purpose of completing the intended larceny. The Appellate Department of the Los Angeles Superior Court found this was a sufficient entry for purposes of burglary: "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." (Id. at p. 31, 210 Cal.Rptr. 182.)

The Court of Appeal followed Osegueda in People v. Moore (1994) 31 Cal.App.4th 489, 37 Cal.Rptr.2d 104 in holding there was sufficient entry for burglary where the defendant had attempted to pry open the front door of an apartment using a tire iron, and an occupant of the apartment had seen the tip of the tire iron protrude into the apartment.

We agree 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 are sufficient entries to support a conviction of burglary. But it does not necessarily follow that the placement of a forged check in the chute of a walk-up window constitutes entering the building within the meaning of the burglary statute, although that conclusion would be compelled were we to follow the decision in People v. Ravenscroft (1988) 198 Cal.App.3d 639, 243 Cal.Rptr. 827, the only California authority to address an analogous question. As we shall explain, we do not find the reasoning in Ravenscroft persuasive.

The defendant in that case was convicted of two counts of...