MAGNESS v. S.C. (PEOPLE)Real Party in Interest, The People, Reply Brief on the MeritsCal.February 14, 2012In the Supreme Court of the State of California CHRISTOPHER MAGNESS, Petitioner, Case No. 8194928 Vv. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; bh £4 20% THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Third Appellate District, Case No. C066601 Sacramento County Superior Court, Case No. 10F04832 The Honorable Emest W.Sawtelle, Judge REPLY BRIEF ONTHE MERITS KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General JULIE A. HOKANS Supervising Deputy Attorney General SALLY ESPINOZA , Deputy Attorney General State Bar No. 234061 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 323-5312 Fax: (916) 324-2960 Email: Sally.Espinoza@doj.ca.gov Attorneysfor Real Party in Interest 4 ~ C O P Y TABLE OF CONTENTS Page I. One who uses a remotecontrolto open a garage door “enters” the home for purposes of the crime of burglary under California law........cccceccseseeseees steereneneneceans 1 A. The case law andlegislative history support the conclusion that one who uses a remote control to open a garage door “enters” the home under California’s burglary statute ............scscsscscsseeseeesseners 1 B. Calderon was properly decided...........c:ccscccssesssetseeee 6 C. The majority’s interpretation of what constitutes an entry would lead to absurd results ...............ccceees 7 COMCIUSION ..........cccceecccesseccesecssccccsessccececseceeesecsesessucecces seceuseveunceseaaceeeeesaaacs 9 TABLE OF AUTHORITIES Page CASES People v. Calderon (2007) 158 Cal.App.4th 137 ......ceevesceeennececeeeenseseeeeeeaeeeseeeseespassim People v. Davis (1998) 18 Cal.4th 712 oooccccsecseesseesseesseesaeesessseecseeseeesseceesseneeeeeespassim People v. Gauze (1975) 15 Cal.3d 709 ooocccscescssesecssseesssessecsseeeessesseesecsseseesseesseees 1,2,4 People v. Ravenscroft (1988) 198 CalApp.3d 639 occcsccssccreeessseesssssesseseessesssesessesssenneees 2, 3,6 People v. Valencia . (2002) 28 Cal4th Doeceesseseesessersecesessesesseseesseeseeesessessassreeseeens 1, 2,7 il I. ONE WHO USES A REMOTE CONTROL TO OPEN A GARAGE Door “ENTERS” THE HOME FOR PURPOSES OF THE CRIME OF BURGLARY UNDER CALIFORNIA LAW Petitioner contends that, because he did not physically penetrate the threshold of the Loops’ residence, there was no evidence of an “entry” sufficient to satisfy the California burglary statute. (PAB! 11.) Petitioner’s argument is without merit. A. The Case Law and Legislative History Support the Conclusion That One Who Uses a Remote Control to Open a Garage Door “Enters” the Home Under California’s Burglary Statute — Asset forth in real party in interest’s opening brief on the merits (OBM?9-14), in People v. Valencia (2002) 28 Cal.4th 1, this Court examined the parameters of an “entry” for purposesofa residential burglary in the context of the breaking of the perimeter of a house without actual entrance into the house. Initially, this Court noted, as it had previously in People v. Davis (1998) 18 Cal.4th 712, that California has ““sreatly expanded’” the commonlaw definition of burglary, which was limited to the breaking and entering of a dwelling in the nighttime. (People v. Valencia, supra, at p. 7, quoting People v. Davis, supra, at p. 720.) This Court observed, however,that “““[a] burglary remains an entry which invadesa possessory interest in a building.”’” (People v. Valencia, supra, at p. 7, quoting Davis, supra, at p. 721, quoting, in turn, People v. Gauze (1975) 15 Cal.3d 709, 714.) This Court went on to explain: “<“Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the dangerthatthe intruder will harm the occupants ' “PAB”refers to Petitioner’s Answer Brief on the Merits. ? “ Furthercitations to the majority’s opinion will be designated “maj. 99opn. from violence that might ensue from the unauthorized intrusion. (People v. Davis, supra, 18 Cal.4th at p. 720.) Here, the Loops’ possessory interest in their residence was violated whenpetitioner, a stranger to them, brokeinto their vehicle, removedtheir garage door opener, and openedtheir garage door. Their personal safety wasalso threatened. This constitutes a burglary. Petitioner also contends that the majority of the Court of Appeal correctly concludedthat the legislative history regarding the law of burglary does not support that the opening of a door in the manner in which it was openedin the present casesatisfies an entry for purposes of the burglary statute. (PAB 11-12.) However, this claim also lacks merit. As the dissent correctly observed, the garage defined the boundary ofthe garage, andits intrusioninto the airspace ofthe garage constituted the entry required for a burglary. (Dis. opn. of Duarte, J Jat pp. 3, 5-6.) As further stated by the dissent: By opening the garage door, petitioner exposed the property to predation, and exposedany occupants to danger. Therefore, liability for burglary is consistent with all expressed purposes of the burglary statute, whether primarily protection possessory | rights [citation] or forestalling the germination ofa situation dangerousto personal safety [citations]. (Dis. opn. at pp. 3-4.) Just as kicking in the door of a home does, an intruder’s use of a garage door openerto open a garage violates the occupant’s possessory interest and fosters a situation that can be extremely dangerousto personal safety. In the present case, the unauthorized opening of a garage door, whetherby use of a garage door openeror by a handle on the door’s exterior, constitutes a burglarious entry, with the garage dooritself serving “ Furthercitations to the dissent’s opinion will be designated as “dis. 99opn. as an instrumentused to penetrate the building. (See discussion of People v. Calderon, supra, 158 Cal.App.4th 137, post.) B. Calderon WasProperly Decided In its opening brief on the merits, real party in interest argued that Calderon was correctly decided. (OBM 14-15.) Real party in interest maintainsthat position. Petitioner agrees that Calderon was properly decided but urges that it was decided correctly for the wrong reasons. (PAB 13.) Specifically, he claims that the mere opening of a door to a structure is insufficient to constitute an entry for the purposeofburglary. (bid. ) Asdiscussed ante, in Calderon, the Court of Appeal held that kicking in the door of a homeis sufficient to constitute a burglarious entry whether or not anypart of the perpetrator’s body penetrates the building.” (People v. Calderon, supra, 158Cal.App.4th at p. 145.) In so holding, the court noted that the defendant and his accomplices had invaded the victim’s possessory interest in his residence by kicking in the door, andit further observed that “kicking in a door creates some of the same dangersto personalsafety that are created in the usual burglary situation—the occupants are likely to react to the invasion with anger, panic, and violence.” (Jbid.) The reasoning in Calderon is sound. Unlike the defendants in Davis and Ravenscroft, in kicking in the victim’s door the defendant and his accomplices in Calderon-were not using the dooras it was intended to be used by the public. As the Calderon court explained, “Surely kicking in the door to a homeinvadesthe possessory interests in that home! Admittedly, the door is doing what a dooris supposed to do, butit is doing so underthe ° Underlying Calderon wasa findingthat, upon being kickedin, the dooritself became an instrument used to penetrate the building so as to constitute an entry into the residence. (See People v. Calderon, supra, 158 Cal.App.4th at pp. 143-145.) control of an invader, not the householder.” (People v. Calderon, supra, 158 Cal.App.4th at p. 145.) In addition, the kicking open of the door was ““the type of entry the burglary statute was intended to prevent’” (People v. Valencia, supra, 28 Cal.4th at p. 13, quoting People v. Davis, supra, 18 Cal.4th at p. 720) asit violated the victim’s possessory interest in his residence andfurther violated his “personalinterest in freedom from violencethat might ensue from unauthorized intrusion” (People v. Valencia, supra, at p. 13, citing People v. Davis, supra, at p. 720). C. The Majority’s Interpretation of What Constitutes an Entry Would Lead to Absurd Results In its openingbrief, real party in interest noted the absurdresults that would flow from the majority’s decision. (OBM 16-17.) In particular, real party in interest pointed out that an intruder whouseda laserto cut a hole in the window of a homeandthe glass cutoutfell into the home would not have entered the home underthe majority’s approach. (OBM 17.) Notably, this Court has concludedthat: [iJnstruments otherthantraditional burglary tools certainly can be used to commit the offense of burglary. A laser could be used to cut an openingin a wall, a robot could be used to “jimmy”a lock. (People v. Davis, supra, 18 Cal.4th at p. 719.) Similarly, the Court of Appeal in Calderon explained that “Davis did not hold that whatis controlling is the dictionary definition of ‘instrument’ or ‘tool.’” (People v. Calderon, supra, 158 Cal.App.4th at p. 145, italics in original.) Instead, the crucialissue is “whether[the] insertion . . . was the type of entry the burglary statute was intended to prevent.” (People v. Davis, supra, 18 Cal.4th at p. 720.) And as the dissent in the case at bench correctly noted, by opening the doorinto the garage, petitioner constructively entered the garage, which resulted in an invasion of the occupants’ possessory interest and created a situation dangerousto personalsafety. (Dis. opn.atp. 4.) Petitioner makesa slippery slope argument, warningthat if this Court finds opening a garage doorsufficient for a burglarious entry, intentionally accessing a neighbor’s wireless internet could constitute burglary, leading to “absurd results.” (PAB 17.) Real party in interest’s position was, andis, simply that the unauthorized opening of a garage door, whether by use of a garage door openeror by a handle on the door’s exterior, constitutes a burglarious entry, with the garage dooritself serving as an instrument used to penetrate the building. (See discussion ofPeople v. Calderon, supra, 158 Cal.App.4th 137, ante.) This Court need go nofurther than that to properly dispose ofthis case. In any event, petitioner’s slippery slope argument is hyperbolic and unsupported by the case law. Accessing one’s wireless internet without consent would not constitute a burglary without an entry or invasion onto the victim’s property. The Loops’ garage door, which served as both an access pointto their garage and as a physical barrier betweenthe interior of — their residence and the driveway, was opened. This unauthorized opening constituted a burglary underthe law as it violated the possessory interest of Mr. Loopandhis wife and also threatened their safety. Without the . utilization of a door, a window,a skylight, a garage door, or other means of access to a person’s home,it is difficult to imagine how one would make a residential burglary case through non-consensualwirelessuse. Appealing to the majority of the Court of Appeal’s reasoning, petitioner raises an additional slippery slope argumentthatis also hyperbolic and unsupported by the case law. Specifically, he asserts that under the reasoning in Calderon, a would-be intruder would “enter” under the burglary statute if he rang a doorbell to summon a homeowner who opened the door. (PAB 14, 17.) Calderon cannotfairly be read to stand for the proposition that the act of coaxing someone from a distance to open their front door constitutes a completed burglary. As set forth ante, central to the Court of Appeal’s holding in Calderon wasthe factthat the kicking open ofthe door violated the victim’s possessory interest in his residence. (People v. Calderon, supra, 158 Cal.App.4th at p. 145.) Underpetitioner’s hypothetical, the opening of the door—although a penetration ofthe building—would not violate the possessory interest of the resident as the resident himself would have made the choice—albeit underfalse pretenses—to open the door and thereby break his home’s perimeter. In the present case, the Loops’ possessory interest in their residence was violated whena stranger brokeinto their vehicle, removed their garage door opener, and opened their garage door. Their personal safety was also threatened. This constitutes a burglary. CONCLUSION For the reasonsset forth herein, as well as for those set forth in real party in interest’s opening brief on the merits, real party in interest respectfully requests that the Court of Appeal’s judgmentbe reversed. Dated: February 9, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General JULIE A. HOKANS. SupervisingDeputy Attorney General SALLY ESPINOZA Deputy Attorney General . Attorneysfor Real Partyin Interest SA2011303700; 1082895 1 .doc CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 2,715 words. Dated: February 9, 2012 KAMALA D. HARRIS Attorney General of California SALLY ESPINOZA Deputy Attorney General Attorneysfor Real Party in Interest 10 DECLARATION OF SERVICEBY U.S. MAIL Case Name: Magnessv. Superior Court (Sacramento) No.: S$194928 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member’s direction this service is made. I am 18 yearsof age or olderand not a party to this matter. I am familiar with the business practice at the Office ofthe Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin theinternal 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 dayin the ordinary course of business. On February 10, 2012, I served the attached REPLY 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 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Arthur L. Bowie The Honorable Jan Scully Esq. Sacramento County Public Defender’s District Attorney Office Sacramento County District Attorney’s 700 H Street, Suite 270 Office Sacramento, CA 95814 P.O. Box 749 Sacramento, CA 95814-0749 Attorney for petitioner Christopher Magness Sent 2 Copies Clerk of the Court Sacramento County Superior Court Court of Appeal 720 Ninth Street, Room 102 Third Appellate District Sacramento, CA 95814 621 Capitol Mall Sacramento, CA 95814 CCAP Central California Appellate Program 2407 J Street, Suite 301 Sacramento, CA 95816 I declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct and that this declaration was executed on February 10, 2012, at Sacramento, California. Declarant $A2011303700 31405533.doc ’
