Filed 7/19/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S192751
           v.                        )
                                     )                       Ct.App. 2 B222399
JAMMAL HANEEF YARBROUGH,             )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                    Super. Ct. No. PA065170
____________________________________)



        Burglary is committed when a person “enters any . . . building” with the
intent of committing “larceny or any felony.” (Pen. Code, § 459; further statutory
references are to the Penal Code.) In People v. Valencia (2002) 28 Cal.4th 1, 11
(Valencia), this court held that a building is entered when the building‟s “outer
boundary” is crossed. A building‟s outer boundary, Valencia said, encompasses
“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.” (Ibid.)
An “unenclosed balcony,” Valencia noted, would not satisfy that test because such
a balcony cannot be “reasonably” viewed as being “part of the building‟s outer
boundary.” (Id. at p. 12, fn. 5, italics deleted.)
        Here, defendant was charged with residential burglary after climbing onto a
second-story apartment‟s private balcony, which was surrounded by a metal
railing some four feet in height and accessible only through the single bedroom‟s
sliding glass door. The trial court instructed the jury that such a balcony was

                                            1
within the apartment‟s outer boundary, and the jury convicted defendant. The
Court of Appeal reversed, relying on a footnote in Valencia, supra, 28 Cal.4th 1,
12, stating that an “unenclosed balcony” is not within a dwelling‟s outer boundary.
(The Court of Appeal did not explain why it considered the second-floor balcony
in this case to be “unenclosed.”)
       We granted the Attorney General‟s petition for review and now reverse the
Court of Appeal‟s judgment.
                   I. FACTS AND PROCEDURAL BACKGROUND
       Salvador Deanda and his family lived in a one-bedroom unit on the second
floor of an apartment building. The bedroom had a sliding glass door opening
onto a balcony that was five feet wide by three feet deep and surrounded by a
metal railing that Deanda, an adult, said came to his stomach. The balcony‟s floor
was eight or nine feet above the ground.
       On August 5, 2009, two bicycles were on the balcony and visible from the
street. Around midnight, Deanda was awakened by the barking of his dog. He
saw defendant standing on the balcony outside its railing. The toes of defendant‟s
shoes protruded under the railing, and defendant‟s fingers were clutching the top
of the railing. Deanda grabbed a stick and rushed at defendant, who either fell or
jumped to the ground.
       At defendant‟s trial for residential burglary (Pen. Code, §§ 459, 460, subd.
(a)), the trial court instructed the jury on the elements of burglary under
CALCRIM No. 1700, as follows: “A person enters a building if some part of his
or her body or some object under his or her control penetrates the area inside the
building‟s outer boundary.” The court also instructed the jury that “[a] building‟s
outer boundary includes the area inside a balcony” that is “attached to” an
inhabited dwelling.


                                           2
       The jury convicted defendant of residential burglary, and the trial court
sentenced him to six years in state prison. The Court of Appeal reversed for
instructional error. Citing footnote 5 in Valencia, supra, 28 Cal.4th 1, 12, that an
“unenclosed balcony” is not “part of a building‟s outer boundary,” the Court of
Appeal stated, without any explanation, that Deanda‟s private, second-floor,
railing-enclosed balcony was “unenclosed,” and that therefore defendant‟s entry
onto that balcony did not constitute burglary.
                            II. THE CRIME OF BURGLARY
A. Common Law
       Under the common law, burglary was an offense against a landholder‟s
right of habitation. (3 LaFave, Substantive Criminal Law (2d ed. 2003) p. 212;
Perkins & Boyce, Criminal Law (3d ed. 1982) p. 255.) The crime was defined as
“the breaking and entering of the dwelling house of another in the nighttime with
the intent to commit a felony.” (3 LaFave, supra, at pp. 205-206.) The word
“dwelling” encompassed not only a building actually used for habitation but also
any structure that was “within the curtilage or courtyard surrounding the house”
and used in connection with the house. (Perkins & Boyce, supra, at p. 259.) The
concern underlying the offense of burglary was that an intruder‟s entry into the
curtilage of a dwelling would pose a “human risk,” as “the dweller or some
member of his household might hear a prowler” and then “go to investigate.” (Id.
at p. 260.)
B. Statutory Law
       In 1872, the California Legislature drew upon the common law concepts in
codifying the crime of burglary. Section 459 now states that a “person who enters
any . . . building . . . with intent to commit . . . larceny or any felony is guilty of
burglary.” Section 460 sets out two degrees of burglary: Burglary of an inhabited
dwelling (residential burglary) is burglary of the first degree. (Id., subd. (a).) “All
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other kinds of burglary are of the second degree.” (Id., subd. (b).) As under the
common law, however, the essence of burglary is “ „ “an entry which invades a
possessory interest in a building.” ‟ ” (Valencia, supra, 28 Cal.4th at p. 7; accord,
Magness v. Superior Court (2012) 54 Cal.4th 270, 277.)
                      III. THIS COURT’S VALENCIA DECISION
       Because this court‟s 2002 decision in Valencia, supra, 28 Cal.4th 1, is
central to the issue here, we discuss that case in some detail.
       At issue in Valencia was whether an intruder‟s “penetration into the area
behind a window screen” was an “entry” of a building sufficient to constitute
burglary. (Valencia, supra, 28 Cal.4th at p. 3.) The defendant used a screwdriver
to remove a bathroom window‟s screen and to pull back a bedroom window‟s
screen, but he was unable to open either window. He was charged with residential
burglary. (Id. at p. 4.)
       At trial, over the defendant‟s objection, the trial court in Valencia gave the
jury this instruction: “ „Any kind of entry, partial or complete, will satisfy the
element of entry. The entry may be made by any part of the body or by use of an
instrument or tool. In order for there to have been an entry, a part of the
defendant‟s body or some instrument, tool or other object under his control must
have penetrated the area inside where the screen was normally affixed in the
window frame in question.‟ ” (Valencia, supra, 28 Cal.4th at p. 5, italics omitted.)
The jury found the defendant guilty of residential burglary. (Ibid.)
       The Court of Appeal in Valencia reversed because of instructional error.
(Valencia, supra, 28 Cal.4th at p. 5.) It held that the defendant‟s removal of a
window screen and his pulling back of another window screen, without succeeding
in opening either window, was not an entry into the residence and therefore no
burglary was committed. (Ibid.) The defendant‟s crime, the Court of Appeal said,
was no more than attempted residential burglary. (Id. at p. 6.)
                                           4
       In reversing the Court of Appeal, this court in Valencia stated that the
defendant did enter the house by “penetration into the area behind” the two
window screens in question. (Valencia, supra, 28 Cal.4th at p. 12.) Valencia
observed that ordinarily a dwelling consists of walls, doors, windows, and a roof,
architectural components marking the dwelling‟s “outer boundary.” (Id. at p. 11.)
But, Valencia added, when in a particular case it is not readily apparent what the
dwelling‟s outer boundary is, a “reasonable belief test” should be applied. (Ibid.)
Under that test, the pertinent inquiry is whether the architectural component in
question “encloses an area into which a reasonable person would believe that a
member of the general public could not pass without authorization” (ibid.), which
is a legal question for the court rather than a factual question for the jury (id., at
p. 15). In a footnote, Valencia stated that “the reasonable belief test necessarily
refers only to an element of a building that reasonably can be viewed as part of the
building’s outer boundary,” and that “[t]he 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 . . . .”
(Valencia, supra, 28 Cal.4th at p. 12, fn. 5, second italics added.)
       Here, the Court of Appeal reversed defendant‟s burglary conviction for
instructional error based on the trial court‟s jury instruction that “a building‟s outer
boundary includes the area inside a balcony.” Although the Court of Appeal relied
on Valencia‟s statement in footnote 5 that an “unenclosed balcony” could not
reasonably be viewed as marking a building‟s “outer boundary” (Valencia, supra,
28 Cal.4th 1, 11), it described that statement as mere “dictum.” Turning to the
facts of this case, the Court of Appeal said that Deanda‟s second-floor, railed-in
balcony was “unenclosed,” giving no reason for that conclusion. That conclusion
led the court to hold that, as a matter of law, the balcony did not mark the outer
boundary of Deanda‟s second-floor apartment unit.
                                            5
       The Court of Appeal here was correct in describing as dictum the reference
to an “unenclosed balcony” in Valencia‟s footnote 5. Because Valencia, supra, 28
Cal.4th 1, pertained to a defendant‟s entry of a building by pulling back two
window screens and had nothing to do with a balcony, no need existed there for a
reference to an “unenclosed balcony.” (See People v. Vang (2011) 52 Cal.4th
1038, 1047, fn. 3 [defining dictum as a comment “ „unnecessary to the decision in
the case‟ ”]; Klein v. United States of America (2010) 50 Cal.4th 68, 85 [same].)
Moreover, Valencia never explained what it meant by an “unenclosed” balcony.
A balcony generally is surrounded by a railing, and to that extent is enclosed. (See
American Heritage Dict. (4th ed. 2000) p. 135 [A balcony is a “platform that
projects from the wall of a building and is surrounded by a railing, balustrade, or
parapet.”]: Webster‟s 3d New Internat. Dict. (2002) p. 165 [A balcony is “an
unroofed platform projecting from the wall of a building, enclosed by a . . .
railing.”].) Because the statement in People v. Valencia, supra, 28 Cal.4th 1, 12,
footnote 5 pertaining to an “unenclosed balcony” was not necessary to its holding
and may engender confusion, we disapprove it as ill-considered dictum. (See
Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 968 [disapproving dictum]; accord,
People v. Lessie (2010) 47 Cal.4th 1152, 1168 [same].)
       The Court of Appeal here disagreed with People v. Jackson (2010) 190
Cal.App.4th 918. That case, like this one, involved an unauthorized entry onto an
apartment‟s private balcony. Applying the “reasonable belief test” from Valencia,
Jackson concluded that the apartment‟s balcony in question comprised “an area into
which a reasonable person would believe that „a member of the general public could not
pass without authorization,‟ ” and thus that an intruder‟s entry onto that area would be
burglary. (Jackson, supra, at p. 925, quoting Valencia, supra, 28 Cal.4th 1, 11.)
       We need not apply Valencia‟s reasonable belief test, however, to decide
whether an unauthorized entry onto a second-floor apartment‟s private balcony
                                          6
with the requisite criminal intent will constitute burglary. Whenever a private,
residential apartment and its balcony are on the second or a higher floor of a
building, and the balcony is designed to be entered only from inside the apartment
(thus extending the apartment‟s living space), the balcony is part of the apartment.
The railing of such a balcony marks the apartment‟s “outer boundary” (Valencia,
supra, 28 Cal.4th at p. 11), any slight crossing of which is an entry for purposes of
the burglary statute.
       Our holding here that a second floor apartment‟s balcony is part of the
apartment when the balcony is designed to be entered from and offers an extension
of the apartment‟s living space was not fully reflected in the trial court‟s jury
instruction. In telling the jury simply that “[a] building‟s outer boundary includes
the area inside a balcony” that is “attached to” an inhabited dwelling, the
instruction‟s language was overbroad. Defendant, however, was not prejudiced,
because the balcony at issue here met our stated criteria: The one-bedroom unit in
which Salvador Deanda lived with his family was on the second floor. Through
the bedroom‟s sliding glass door, the Deanda family could enter onto a three-by-
five-foot private balcony, which was surrounded by a metal railing some four feet
high. The balcony was designed to be accessed only from the Deandas‟
apartment, extending their apartment‟s living space. On these facts, we conclude
that a properly instructed jury would not have reached a different verdict.1




1       We reject defendant‟s contention that affirming his burglary conviction
would be an “ „unforeseeable judicial enlargement‟ ” of California‟s burglary
statute. (See People v. Wharton (1991) 53 Cal.3d 522, 586; Bouie v. City of
Colombia (1964) 378 U.S. 347, 353-354.) We have never held that an intruder‟s
entry onto a second floor apartment‟s private balcony, as occurred here, could not
constitute the crime of burglary.
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                                DISPOSITION
     The judgment of the Court of Appeal is reversed.


                                              KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Yarbrough
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 193 Cal.App.4th 921
Rehearing Granted

__________________________________________________________________________________

Opinion No. S192751
Date Filed: July 19, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Ronald S. Coen

__________________________________________________________________________________

Counsel:

Laura S. Kelly, under appointment by the Supreme Court, and Linda Charman Hayes, under appointment
by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Blythe J.
Leszkay, Susan Sullivan Pithey, Lawrence M. Daniels and David Zarmi, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Laura S. Kelly
4521 Campus Drive, #175
Irvine, CA 92612
(949) 737-2041

David Zarmi
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1336
