PEOPLE v. YARBROUGH

Respondent's Opening Brief on the Merits

Cal.August 17, 2011

In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. JAMMAL YARBROUGH, Defendant and Appellant Case No. 8192751 Los Angeles County Superior Court, Case No. PA065170 The Honorable Ronald S. Coen, Judge RESPONDENT’S OPENING BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JAMES WILLIAM BILDERBACKII Supervising Deputy Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General DAVID ZARMI Deputy Attorney General State Bar No. 245636 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 576-1336 Fax: (213) 576-1300 Email: David.Zarmi@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented 00... eeeescsscenssereeeceeseeeneesseersecenerseeseseeesseeseeesseessdsneesenaesarenats l Trntroduction ........cccccesessceesscseesseesececeseeceeesanecessaseaeseesseesaeenaeeanesseeesatereeeaes 1 Statement Of the Case......s.cceccsececsesseeseecssecseceeesssssessecsieeesseeseesetersneesatenesens 2 Summary Of ArQuMent...........ccceccseesseeeseecteecsseesecseetseeeseeeessceteneeesnaeerseeesaes 3 ATRUMENL 0... ecececctcceessneeesseerecessneeesesssaneeeecceaeessensesesesateeeecersaneeseeeseeaateeten 5 I, Appellant’s entry onto the balcony in this case Constituted DUrglary ........ccesescsescseeenetesseeeeseteserseteeteteeress 5 A. Entry into a building in the context of burglary ......... 5 B. Thetrial court properly found that Deanda’s balcony waspart of the apartmentbuilding................ 7 C, The Court of Appeal misinterpreted Valencia............ 8 D. Even under the Court of Appeal’s reading of Valencia, the balconyin this case wasenclosed...... 1] E. Under the Court of Appeal’s reading of footnote 5 in Valencia, this court should reject that passage as inconsistent Aicta......scessceseeerereeenees 13 Conclusion ......:..ccscecsscessseceeceseeteneceeeseaeeceanessnaesseesaeesaeessessesesseseessenecnnaensees 14 TABLE OF AUTHORITIES Page CASES Costco Wholesale Corp. v. Superior Court : (2009) 47 Cal.4th 725ecceeeseesessseseesesssessesscsesseessesecseesssesseresesees 10 Dep’t ofSoc. Welfare v. Wingo (1946) 77 Cal.App.2d 316... cceeseeesceeteeessssesseesersrersessecsessecseeees 12 People v. Jackson (2010) 190 Cal.App.4th 918 oo. iccsecerressessecrseserreseeneeneens passim People v. Thorn | | (2009) 176 Cal.App.4th 255oiccccessesescereenesieneerseseneereneenes 6, 7 People v. Valencia (2002) 28 Cal4th Loiceeeeeseenessesssessecsssrsecsesecseessesseesneeeees passim STATUTES Pen. Code, § 459 ....ccccscccssecssceeesecsecesseessnecssnerseetseseesseessseessesessussseesegs 3,5 COURT RULES Cal. Rules of Court, rule 8.122(a)(3) ....cccescseecseeeneeeserereeeeetesetieesaneees 12 Cal. Rules of Court, rule 8.224 ooo... cccccecsseecesneseneeeeesneeeseseerseaessseesenaes 12 OTHER AUTHORITIES Webster’s Third New International Dictionary (2002)...eee 13 li ISSUE PRESENTED Did the Court of Appealerr in determining that an unenclosed second floor balcony “is not part of a building” such that entry onto the balcony could not constitute burglary? INTRODUCTION In People v. Valencia (2002) 28 Cal.4th 1, this Court established a “reasonable belief test” to determine whether an areasatisfies the “building” element of burglary. According to thistest, “a building’s outer boundary includes any elementthat encloses an area into which a reasonable person would believe that a memberofthe general public could not pass without authorization.” (/d. at p. 11.) In footnote 5 of its opinion, this Court stated: [I]n defining the outer boundaryofa building for purposes of burglary, the reasonable-belieftest necessarily refers only to an elementof a building that reasonably can be viewedas part of the building's outer boundary. The test does not encompass any feature that is not such an element, such as a lawn, courtyard, unenclosed patio, or unenclosed balcony that may be located in front of or behind a building... . (Ud. at p. 11, fn. 5, italics in original.) Applying the reasonablebelief test of Valencia, the Court of Appeal in People v. Jackson (2010) 190 Cal.App.4th 918, held that a private apartmentbalcony is part of the building under the burglary statute. The Court of Appeal in this case, however, construed footnote 5 of Valencia as categorically excluding unenclosed balconies, and reversed appellant’s burglary conviction. Because a private balcony with a railing and roofthat is attached to a second-story apartmentis a place “into which a reasonable person would believe that a memberof the general public could not pass without authorization” (People v. Valencia, supra, 28 Cal.4th at p. 11), and is reasonably viewedaspart of the building’s outer boundary (id. at fn. 5), this Court should reinstate appellant’s conviction. The Court of Appeal’s decision should be reversed. STATEMENT OF THE CASE On August 5, 2009, appellant climbed into Salvador Deanda’s second- story balcony. (2RT 315, 320-321.) The balcony wasaccessible from the inside only through Deanda’s apartment living room, was surroundedby a waist-high railing, and was roofed by an overhang. (2RT 314, 322-324; People’s Exs. 4 & 5.) Appellant had his feet solidly on the balcony under the railing, and his hands were wrappedaroundthe railing when Deanda _ came out and pushed him off the second-story balcony into the ground- level balcony below. (2RT 323, 326-329.) Appellant had previously been caught shoplifting in the area. (2RT 400-412.) Attrial, the trial court instructed the jury that appellant was guilty of burglary if he entered the balcony with the intent to commit theft. (RT 979-980; CT 123.) Appellant did not object to the instructions when asked. (See 3RT 903.) Following deliberations, the jury found appellant guilty of first degree burglary: entry into “any house, room, apartment . . . or other building . . . with intent to commit... any felony.” (Pen. Code, § 459; CT 133.) On appeal, appellant arguedthatthe trial court improperly instructed the jury that the second-story balcony waspart of the apartmentbuilding as a matter of law. On March 23, 2011, the Court of Appeal issued a published opinion finding that the apartment balcony was “unenclosed,” and holding that under this Court’s decision in Valencia, the balcony was not within “the outer boundary of a building” as a matter of law. (Opn.at p. 4, quoting People v. Valencia, supra, 28 Cal.4th at p. 11, fn. 5.) The Court of Appeal explicitly disagreed with the opinion in Jackson that held a similar balcony waspart of “the outer boundary of a dwelling” under Valencia. (Opn.at pp. 4-5.) Accordingly, the Court of Appeal reversed appellant’s burglary conviction. (Opn. at p. 6.) This Court granted respondent’s petition for review. SUMMARY OF ARGUMENT The Court of Appeal erred when it found:(1) that a second-story balcony with a railing and a roof accessed only from its adjoining apartment was “unenclosed” under Valencia’s footnote 5 such thatit could not reasonably be consideredpart of the apartment’s building; and (2) that Valencia’s footnote 5 prohibits a trial court from ever finding that an “unenclosed balcony” is within a building’s outer boundary. As a preliminary matter, the “unenclosed balcony” mentioned in footnote 5 could not have been referring to the type of balconyinthis case. Following the principle of ejusdem generis, “unenclosed balcony” appears to refer to an unfencedraised patio, akin to “the lawn, courtyard, [and] unenclosed patio.” (People v. Valencia, supra, 28 Cal.4th at p. 12, fn. 5.) Regardless, Valencia did not categorically state that an unenclosed balcony may not reasonably be considered within the outer boundary of a building in the burglary context. Instead, footnote 5 explained that each of its nonexclusive examples does not constitute a building’s outer boundary only ifit “is not such an element,”referring back to the previous sentence, which recounted the reasonable belief test as “an element of a building that reasonably can be viewedaspart of the building’s outer boundary.” (People v. Valencia, supra, 28 Cal.4th at p11 & fn. 5, first italics added.) That is, according to footnote 5, an unenclosed balcony is simply an example of an area that might not meet the reasonable belief test. However, contrary to the Court of Appeal’s opinion, the particular unenclosed balcony in this case may reasonably be viewedaspart of a building’s outer boundary in the burglary context. The Court of Appeal’s decision should therefore be reversed. ARGUMENT I. APPELLANT’S ENTRY ONTO THE BALCONYIN THIS CASE CONSTITUTED BURGLARY : Entry onto a balcony would be considered burglary if the balcony may reasonably be considered part of the building’s outer boundary andif “a reasonable person would believe that a memberof the general public could not pass without authorization.” (People v. Valencia, supra, 28 Cal.4th at p. 11.) Determination of whether a particular balcony meets this test is a case-by-case determination. Here,the trial court correctly found that the victim’s partially enclosed second-floor balcony, accessed only through his apartment, satisfied thetest. A. Entry into a Building in the Context of Burglary In California, burglary is committed when a person “enters any house ....,apartment... ,or other building . . _, With intent to commit... larceny or any felony.” (Pen. Code, § 459.) Whether the area a defendant - entered is part of a building in the context of burglary is governed bya “reasonable belief test” set out by this Court in Valencia. (People v. Valencia, supra, 28 Cal.4that p. 11) This test is to be applied by thetrial court and not by the jury, asit is a question of law, not fact. (/d. at p. 16.) In Valencia, this Court found that a defendant was properly convicted of burglary when he penetrated the area between a house’s windowscreen and a window. (People v. Valencia, supra, 28 Cal.4th at pp. 4, 6.) This Court laid out a “reasonable belief test” to determine if entry into an area could be considered burglary. Underthis test, “a building’s outer boundary includes any elementthat encloses an area into which a reasonable person would believe that a memberof the general public could not pass without authorization.” (/d. at p. 11.) This Court addedin a footnote that, even if an area meets the “reasonable belieftest,” it still must actually be within the building’s outer boundary. This Court gave examples of areas that may not be within a building’s outer boundary, cautioning, “The test does not encompass any feature that is not such an element, such as a lawn, courtyard, unenclosedpatio, or unenclosed balcony that may be located in front of or behind a building; nor does the test purport to define any such feature as part of a building’s outer boundary.” (/d. at p. 12, fn. 5.) The Court of Appeal has further refined the test for whether a Structure is within a building’s outer boundary to include an inquiry as to whether the questionable structureis “functionally interconnected with and immediately contiguous to the” inhabited structure. (See, e.g., Peoplev. Thorn (2009) 176 Cal.App.4th 255, 262.) In Jackson, the Court of Appeal found that under both the Valencia reasonable-belief test and the functionally-interconnectedtest, a private, second-story balcony with a fence or concrete barrier was part of the apartment to which it was attached. (People v. Jackson, supra, 190 Cal.App.4th at p. 925.) Additionally this Court ruled in Valencia that application of the “reasonable belief”test is an issue forthe trial court and not a jury. There, the defendant requested the trial court to instruct: “The test of whether an entry has occurred is whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions.” (People v. Valencia, supra, 28 Cal.4th at p. 5.) This Court foundthatthetrial court correctly declined to issue the instruction. “Whether penetration into the _ area behind a window screen amountsto an entry of a building within the meaning ofthe burglary statute is a question of law and not a question of fact. A trial court’s instructions must resolve such a legal issue for the jury, and may not invite the jury to resolve the question foritself.” (/d. at p. 16.) Thus, this Court has clearly announcedthat the “reasonable belief test”is, like other reasonable person tests, not a question for the jury. (See People v. Thorn, supra, 176 Cal.App.4th at p. 268.) B. The Trial Court Properly Found That Deanda’s Balcony WasPart of the Apartment Building Here, the trial court properly found that Deanda’s balcony waspart of his apartment building. As described abovein the Statement of the Case, the balcony wasaccessible from the inside only through Deanda’s apartmentliving room and was surroundedby a waist-highrailing. (2RT 314, 322-323.) Thus, it was clearly “an area into which a reasonable person would believe that a member of the general public could not pass without authorization.” (People v. Valencia, supra, 28 Cal.4th at p. 11.) Additionally, the trial court properly found that the balcony waspart of apartment building. The balcony was surroundedbya railing and covered by an overhang ofthe building’s roof. (2RT 322-324; People’s Exs. 4 & 5.) On thosefacts,the trial court properly determined that the balcony waspart of the building and not analogous to the examples of areas outside of a building’s outer boundary given by this Court in Valencia. (See People v. Valencia, supra, 28 Cal.4th at p. 11, fn. 5.) In this manner,the trial court applied the same reasoning as the appellate court in Jackson, albeit with even stronger facts. The Jackson court found that the balcony in that case, which was surrounded by a fence or concrete barrier that one could climb over, “was an element of the building that enclosed an area into whicha reasonable person would believe that ‘a memberofthe general public could not pass without authorization.”” (People v. Jackson, supra, 190 Cal.App.4th at pp. 921, 925, quoting People v. Valencia, supra, 28 Cal.4th at p. 11.) C. The Court of Appeal Misinterpreted Valencia The Court of Appealin this case foundthat the trial court erred when it instructed the jury that the outer boundary ofa building “includes the area inside a balcony.” (Opn.at p. 2.) The Court of Appeal reasoned that an unenclosed balcony, such as the onein this case, “is not part of a building for the purposesofthe burglary statute.” (Opn. at pp. 3-4.) Specifically, the Court of Appeal found that under Valencia, the ordinary reasonable belief test for finding if an entry constituted burglary “does not encompass an unenclosed balcony.” (Opn.at p. 4.) Additionally, the Court of Appeal disagreed with the conclusion in Jacksonthat entry onto a balcony with a “woodenlattice piece” on one side could constitute burglary under Valencia. (Opn.at pp. 4-5.) The opinion described the relevant balconyin this case as “bordered by a waist-high wroughtiron railing, with a space betweenthe railing and the floor’ and “separated from [the] living quarters by a sliding glass door.” (Opn.at p. 2.) The Court of Appeal’s interpretation of Valencia is insupportable. Although Valencia mentioned an “unenclosed balcony”as a possible example of a feature that is not part of a building’s outer boundary,it did not take away a lowercourt’s ability to find that a particular “unenclosed balcony”is “reasonably . . . viewed aspart ofthe building’s outer boundary” (People v. Valencia, supra, 28 Cal.4th at p. 12, fn. 5, italics omitted), or that a balcony was enclosed.’ Thus,a trial court could find that ' Although the word “balcony”is used in differentsenses,it appears that Valencia used the word “balcony” to mean a type of raised patio. (See, e.g., 2RT 324-325, 329 [where both the prosecutor and victim Deandarefer to second-floor andfirst-floor balconies as top and bottom balconies, respectively].) With this definition, Valencia’s “unenclosed balcony” would refer to an unfencedraised patio, akin to “the lawn, courtyard, [and] unenclosedpatio.” (People v. Valencia, supra, 28 Cal.4th at p. 12, fn. 5; (continued...) entry onto a particular balcony with felonious intent would constitute burglary, as it did here. (Seeid. at p. 16.) Throughthe use ofellipses, the Court of Appeal changed the meaning of Valencia’s language:“[T]he outer boundary of a building for purposes of burglary . . . does not encompass. . . [an] unenclosed balcony. ...” (See Opn.at 2, quoting, in part, People v. Valencia, supra, 28 Cal.4th at p. 12, fn. 5.) The Court of Appeal omitted the crucial words: “does not encompassanyfeature that is not such an element, such as... [an] unenclosed balcony.” (See Valencia, at p. 12, fn. 5, italics added.) The unedited text belies the Court of Appeal’s interpretation, The Court of Appeal explicitly rejected Jackson’s reasonable-belief test in favorof its rigid interpretation of Valencia as completely excluding an unenclosed balcony from burglary. (Opn.at 2, 4.) The Court of Appeal did not dispute that application ofJackson’s reasonable-belief test would have resulted in an affirmation ofthe trial court’s finding that the balcony waspart of the apartment. (Opn. at 4.) Although Jackson did not directly address the footnote in Valencia, it found that the balconyin that case, which was surrounded bya fence or concrete barrier that one could climb (...continued) see Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 743 [using ejusdem generis principle of construction].) Thus, even the strictest construction of footnote 5 wouldstill exclude a second-story balcony inaccessible from the outside. 10 over, “was an elementof the building that enclosed an area into which a reasonable person would believe that ‘a memberof the general public could 299not pass without authorization.’” (People v. Jackson, supra, 190 Cal.App.4th at pp. 921, 925, quoting People v. Valencia, supra, 28 Cal.4th at p. 11.) Significantly, however, the Valencia footnote did notlist categorical exceptions to the controlling test that the Court was announcing. Instead, the footnote explainedthat each ofits nonexclusive examples does not constitute a building’s outer boundaryonlyifit “is not such an element,” referring back to the previous sentence, which recounted the reasonable belief test as “an element of a building that reasonably can be viewed as part of the building’s outer boundary.” (People v. Valencia, supra, 28 Cal.4th at p. 11, fn. 5, first italics added.) That is, according to the footnote, a particular unenclosed balcony is simply an example of an area that might not meet the reasonable belief test. Under these circumstances, this Court should reject the Court of Appeal’s interpretation of the Valencia language. D. Even underthe Court of Appeal’s Reading of Valencia, the Balcony in This Case Was Enclosed Evenif this Court intended in Valencia that no “unenclosed balcony” should be part of a building for purposes of burglary, the balconyin this case wasnot “unenclosed.” Whether the balcony was“enclosed”or 1] “partially enclosed,” the existence of a railing and rooftook the balconyout of the “unenclosed”category. Asdiscussed above in ArgumentB,the balcony here was surrounded by a waist-high railing. (2RT 314, 322-323; see Opn. at 2.) However, the balcony was also enclosed by a roof, apparent in People’s Exhibits 4and 5. Exhibits 4 and 5 were identified in court and entered into evidence on January 25, 2010. (IRT 3; 2RT 324-325, 413.) As Deanda described at trial, Exhibits 4 and 5 are photographs of his second-story balcony. (2RT 324-325.) The photographs show the building’s roof extending over the balcony. (RB 13; see Dep’t ofSoc. Welfare v. Wingo (1946) 77 Cal.-App.2d 316, 318 [where exhibit introduced in evidenceat trial and referred to in brief on appeal had not been transmitted to appellate court, appellate court relied on statementin brief as to content of exhibit].)” Asall trial court exhibits are automatically includedin the appellate record pursuant to California Rules of Court, rule 8.122(a)(3), this Court should take the * Respondenthas requested transfer of People’s Exhibits 4 and 5 to this Court pursuant to California Rules of Court, rule 8.224. The balcony maystill be viewed on the Google Maps website under the Street View feature at http://maps.google.com for the building’s address recordedin the reporter’s transcript. (See 2RT 313; see also 1RT 3 [prosecutor used Google Mapsto create photographic exhibits].) 12 balcony roof into accountin its analysis of the enclosed nature of the balcony.’ E. Under the Court of Appeal’s Reading of Footnote 5 in Valencia, This Court Should Reject That Passage as Inconsistent Dicta Ultimately, it should be the reasonable-belieftest for burglary that controls, not the dicta of footnote 5. In the text of Valencia,this Court already chargedthetrial courts with determiningif an enclosed area is one of which “a reasonable person would believe that a memberofthe general public could not pass without authorization.” (People v. Valencia, supra, 28 Cal.4th at pp. 5, 11.) There is no reason why a trial court should not also be able to determineif the same area is reasonably consideredpart of a building to begin with, the issue raised in footnote5. Thus, this Court should clarify that although there are enclosed areas - that a trial court might find are beyond a building’s outer boundary, such determinations are up to the trial courts on a case-by-casebasis. Structures attached to a building, such as balconies, should not be categorically excluded. Anyruling that categorically finds a burglar’s entry onto a * Webster’s Third New International Dictionary (2002) at page 165, column 3, defines a “balcony”as “a usually unroofed platform projecting from the wall of a building.” As a balcony is usually unroofed,thetrial court properly found that a roofed balcony was not “unenclosed” per Valencia. (But see footnote 1, above [Valencia’s “unenclosed balcony” appearsto refer to a raised patio rather than thetraditional dictionary definition].) 13 balcony with a rail and a roof, inaccessible from a public area, is not burglary, would be contrary to this Court’s test in Valencia. Accordingly, whether the Court of Appeal misinterpreted the footnote in Valencia ornot, the Court of Appeal’s ruling should be reversed. CONCLUSION The Court of Appeal’s decision runs afoul of this Court’s precedent and commonsense. It finds a categorical “balcony” exception of burglary wherethere is none. It specifically finds that a burglar’s entry onto a private balcony attached to an apartment bedroom is not burglary. This Court should reverse the Court of Appeal’s decision excluding railed and roofed balconies as a matter of law from the crime of burglary andreinstate appellant’s conviction. Dated: October 12, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DaneR.Gillette Chief Assistant Attorney General JAMES WILLIAM BILDERBACKII Supervising Deputy Attorney General LAWRENCEM. DANIELS Supervising Deputy Attorney General Zw DAVID ZARMI Deputy Attorney General Attorneysfor Respondent LA2011502065 14 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S OPENING BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 3,086 words. Dated: October 12, 2011 KAMALA D. HARRIS Attorney General of California bia DAVID ZARMI Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: The People of the State of California v. Jammal Yarbrough Case No.: $192751 I declare: Iam employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 13, 2011, I served the attached RESPONDENT'S OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Carolyn Yeh LauraS. Kelly Deputy District Attorney Attorney at Law L. A. County District Attorney's Office 4521 CampusDrive, #175 23747 W. Valencia Boulevard Irvine, CA 92612 Santa Claria, CA 91355 Clerk of the Court John A. Clarke Court of Appealof the State of California Clerk of the Court 300 South Spring Street Los Angeles County Superior Court ‘2nd Floor, North Tower 111 N. Hill Street Los Angeles, CA 90013 Los Angeles, CA 90012 For Delivery to Hon. Ronald S. Coen, Judge I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on October 13, 2011, at Los Angeles, California. Jennifer Familo Declarant LA2011502065 50992432,doc