Magness v. Super. Ct. 6/10/11 CA3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2011 » Magness v. Super. Ct. 6/10/11 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C066601

Case Date: 09/21/2011

Preview:Filed 6/10/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento) ---CHRISTOPHER MAGNESS, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGS in mandate. Allen H. Sumner and Ernest W. Sawtelle, Judges. Peremptory writ issued. Paulino G. Duran, Public Defender, Arthur L. Bowie, Supervising Assistant Public Defender, Alicia Hartley, Assistant Public Defender for Petitioner. No appearance for Respondent. Edmund G. Brown, Jr., and Kamala Harris, Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Maggy Krell, and Sally Espinoza, Deputies Attorney General, for Real Party in Interest. C066601 (Super. Ct. No. 10F04832)

1

Standing in the driveway of a home, with the intent to commit larceny inside, a person uses a remote control to open a garage door, but then flees before going inside the garage when the homeowner responds to the opening door. Has the person Our

committed first degree burglary or just attempted to do so? answer is that under Penal Code1 section 459, there was no burglary, only an attempted burglary.

Because that conclusion

means, in this case, that petitioner Christopher Magness was held to answer for first degree burglary without probable cause, we will order that a writ of prohibition issue barring further prosecution of him for that crime. FACTUAL AND PROCEDURAL BACKGROUND In July 2010, Magness was charged by complaint with the attempted first degree burglary of a house and the completed second degree burglary of an automobile. At a preliminary

hearing in August 2010, the People presented evidence that on July 24, Timothy Loop was surprised to hear the garage door of his house opening. Loop ran from the house into the garage and

saw a man (later identified as Magness) standing near the end of the driveway. Magness fled when Loop tried to confront him, but

was later apprehended. Where Loop had seen Magness standing in the driveway, Loop discovered the remote control for his garage door opener. The

remote control had previously been inside Loops locked car,

1

All further section references are to the Penal Code. 2

which was parked in the driveway.

The window seal on the car

had been peeled back, and the window was down a couple of inches. Based on this evidence, the People sought to have the court hold Magness to answer for a completed, rather than an attempted, burglary of the residence.2 The prosecutor argued

that "although [Magness] physically did not make entry" into the garage, using "the [remote control] to open the garage door is using an instrument to make entry." In response, Magness argued

there was "no physical entry" into the garage. The court (Judge Allen H. Sumner) concluded the evidence was sufficient to hold defendant to answer for a completed burglary because "the garage door was penetrated by use of the [remote control]." In October 2010, Magness filed a motion under section 995 to dismiss the first degree burglary charge, claiming the evidence at the preliminary hearing was insufficient to support the charge because "[n]o part of [his body] entered the boundary of the garage," "[n]or did any tool act as an extension of [him] in order to penetrate the outer boundary of the residence." The prosecution opposed the motion, arguing that "[t]he outer boundary of the home was clearly penetrated when the garage door was opened with the use of the [remote control]."

2

The completed burglary of the automobile also charged against Magness is not at issue here. 3

The court (Judge Ernest W. Sawtelle) denied the motion, concluding that "the use of a tool to open a door to a building, even if neither the tool [n]or the person operating the tool touches the inside at any time, . . . still effectuates an entry for purposes of a burglary." In November 2010, Magness filed a timely petition for writ of prohibition, with a request for an immediate stay, seeking review of the superior courts denial of his section 995 motion.3 In December 2010, we stayed Magnesss upcoming trial and issued an alternative writ. DISCUSSION Under California law, a person commits burglary when he or she "enters any house . . . or other building . . . with intent to commit grand or petit larceny or any felony . . . ."4 (

Download Magness v. Super. Ct. 6/10/11 CA3.pdf