THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WAYNE DAVIS, Defendant and Appellant, 18 Cal. 4th 712

Opinion GEORGE, C. J. 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), 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. 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) 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 com crib, caught the shelled corn in a sack as it flowed through the hole, then sealed the hole using a com cob.

The entry of the bit of the auger into the com 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 instmment 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.) 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. Supp. 31.) 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 com crib is a sufficient entry 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 burglary based upon his conduct of “surreptitiously stealing and inserting the automated teller machine (ATM) card of his traveling companion, Barbara Ann Lewis, in two ATM’s and punching in her personal identification number, which he had previously noted, on the ATM keypads in order to withdraw funds from her account.” (People v. Ravenscroft, supra, 198 Cal.App.3d 639, 641.) The Court of Appeal first concluded that an ATM is a structure protected by the burglary statute.

The court then turned to the question whether insertion of the ATM card constituted an entry into that structure. The court rejected the defendant’s arguments that insertion of the card did not violate the air space of the ATM, and that insertion of the card did not constitute an entry, because the defendant lost control of the card once it entered the ATM: “The insertion of an ATM card to effectuate larcenous intent is no less an entry into the air space of a bank as would be the use of any other tool or instrument.

Although the California Penal Code does not define ‘entry’ for the purpose of burglary, the California courts have found that a burglary is complete upon the slightest partial entry of any kind, with the requisite intent, even if the intended larceny is neither committed nor even attempted. [Citations.] By pushing Lewis’s card into an ATM’s slot, the defendant completed the crime.

Further control of the card is unnecessary.” {Id. at p. 643.) The Court of Appeal then rejected the defendant’s further contention that he did not commit burglary by inserting the ATM card, because this act differed from other examples of entry by instrument: “Ravenscroft argues that Walters and Osegueda, supra, should not apply to this case since they involve more traditional violations of air space with more traditional burglars’ tools. • • • ffl] • • • [i] The fact that both Walters and Osegueda involve more traditional methods of burglary is of no moment. The gravamen of burglary is

an act of entry, no matter how partial or slight it may be, with an instrument or tool which is appropriate for the particular instance, accompanied by the proper intent. [Citations.]” {People v. Ravenscroft, supra, 198 Cal.App.3d 639, 643-644.) The appellate court in Ravenscroft properly rejected various arguments presented by the defendant, correctly concluding that the card wás inserted into the air space of the ATM, that the circumstance that the defendant lost control of the card is not dispositive, and that the rule governing entry by means of an instrument is not limited to traditional burglar tools.

Instruments other than traditional burglar tools certainly can be used' to commit the offense of burglary. A laser could be used to cut an opening in a wall, a robot could be used to enter a building, or an ATM card could be used to “jimmy” a lock. But it does not necessarily follow from these conclusions that insertion of a stolen card into an ATM constitutes burglary.

The Court of Appeal in Ravenscroft appeared to reason that because an entry by means of an instrument is not limited to the use of traditional burglar’s tools, there are no limitations within the meaning of the burglary statute on what constitutes entry by means of an instrument.

It certainly is within the scope of the burglary statute to recognize that using a cutting tool to breach the walls, doors, or windows of a building constitutes an entry, whether the burglar uses traditional burglar tools or a laser, and that using an instrument to reach into a building and remove property constitutes burglary whether that instrument is a hook or a robot. These are the traditional types of entry prohibited by the burglary statute, even though the entry may be accomplished in new ways.

Inserting a stolen ATM card into the designated opening in an ATM is markedly different from the types of entry traditionally covered by the burglary statute, as is passing a forged check through a chute in a walk-up window. In each situation the defendant causes an object to enter the air space of a building, but it is not apparent that the burglary statute was meant to encompass such conduct. It is important to establish reasonable limits as to what constitutes an entry by means of an instrument for purposes of the burglary statute.

Otherwise the scope of the burglary statute could be expanded to absurd proportions. For example, the Attorney General asserted at oral argument that mailing a forged check from New York to a bank in California, or sliding a ransom note under a door, would constitute burglary. A person who mails a forged check to a bank or slides a ransom note under a door causes that forged check or ransom note to enter the building, but it cannot reasonably be argued that these acts constitute burglary.

Under the expansive approach to the burglary statute taken by the Attorney General and reflected in the Ravenscroft decision, it is difficult to imagine what reasonable limit would be placed upon the scope of the burglary statute. It could be argued similarly that a defendant who, for a fraudulent purpose, accesses a bank’s computer from his or her home computer via a modem has electronically entered the bank building and committed burglary. The crucial issue, not considered by the court in Ravenscroft, is whether insertion of the ATM card was the type of entry the burglary statute was intended to prevent.

In answering this question, we look to the interest sought to be protected by the burglary statute in general, and the requirement of an entry in particular. The interest sought to be protected by the common law crime of burglary was clear. At common law, burglary was the breaking and entering of a dwelling in the nighttime. The law was intended to protect the sanctity of a person’s home during the night hours when the resident was most vulnerable. As one commentator observed: “The predominant factor underlying common law burglary was the desire to protect the security of the home, and the person within his home.

Burglary was not an offense against property, real or personal, but an offense against the habitation, for it could only be committed against the dwelling of another. . . . The dwelling was sacred, but a duty was imposed on the owner to protect himself as well as looking to the law for protection. The intruder had to break and enter; if the owner left the door open, his carelessness would allow the intruder to go unpunished.

The offense had to occur at night; in the daytime home-owners were not asleep, and could detect the intruder and protect their homes.” (Note, Statutory Burglary—The Magic of Four Walls and a Roof {1951) 100 U. Pa. L.Rev. .411, 427, fns. omitted.) The drafters of the Model Penal Code observed: “The notable severity of burglary penalties is accounted for by the fact that the offense was originally confined to violent nighttime assault on a dwelling. The dwelling was and remains each man’s castle, the final refuge from which he need not flee even if the alternative is to take the life of an assailant.

It is the place of security for his family, as well as his most cherished possessions. Thus it is perhaps understandable that the offense should have been a capital felony at common law . . . .” (Model Pen. Code & Commentaries, com. to § 221.1, p. 67.) In California, as in other states, the scope of the burglary law has been greatly expanded. There is no requirement of a breaking; an entry alone is sufficient. The crime is not limited to dwellings, but includes entry into a wide variety of structures.

The crime need not be committed at night. “Of all common law crimes, burglary today perhaps least resembles the prototype from which it sprang. In ancient times it was a crime of the most precise definition, under which only certain restricted acts were criminal; today it has become one of the most generalized forms of crime, developed by judicial accretion and legislative revision. Most strikingly it is a creature of modem Anglo-American law only.

The rationale of common law burglary, and of house-breaking provisions in foreign codes, is insufficient to explain it.” (Note, Statutory Burglary—The Magic of Four Walls and a Roof supra, 100 U. Pa. L.Rev. at p. 411.) More than a century ago, in People v. Barry (1892) 94 Cal. 481 [29 P. 1026], this court addressed the subject of what constitutes an entry for purposes of burglary. The defendant in Barry entered a grocery store during business hours and attempted to commit larceny.

This court, rejecting the contention that a burglary had not occurred because the defendant had entered lawfully as part of the public invited to enter the store, stated: “[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter.” (Id. at p. 483; People v. Salemme (1992) 2 Cal.App.4th 775, 781 [3 Cal.Rptr.2d 398] [entering a residence to sell fraudulent securities is an entry within the meaning of the burglary statute].) In People v.

Gauze (1975) 15 Cal.3d 709 [125 Cal.Rptr. 773, 542 P.2d 1365], we clarified our holding in Barry and held that a person cannot burglarize his or her own home.

We observed that “[a] burglary remains an entry which invades a possessory right in a building.” (Id. at p. 714.) We then discussed the interest protected by the burglary statute: “ ‘Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intrader will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.

The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.’

Section 459, in short, is aimed at the danger caused by the unauthorized entry itself.” (Id. at p. 715.) We repeated that sentiment in People v. Montoya, supra, 1 Cal.4th 1027, 1045, in which we held that, “for the purpose of assessing the liability of an aider and abettor, a burglary is considered ongoing during the time the perpetrator remains inside the structure.” We stated: “The crime of burglary consists of

an act—unlawful entry—accompanied by the ‘intent to commit grand or petit larceny or any felony.’ ” (Id. at p. 1041, fn. omitted.) We noted that the “underlying basis for the criminal sanction” of burglary is “ ‘the danger caused by the unauthorized entry itself.’ ” (Id. at p. 1042.) The Model Penal Code echoes this theme by noting that the crime of burglary “reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” (Model Pen.

Code & Commentaries, Introductory Note to art. 221, p. 59.) Inserting a stolen ATM card into an ATM, or placing a forged check in a chute in the window of a check-cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute. Neither act violates the occupant’s possessory interest in the building as does using a tool to reach into a building and remove property. It is true that the intended result in each instance is larceny.

But the use of a tool to enter a building, whether as a prelude to a physical entry or to remove property or commit a felony, breaches the occupant’s possessory interest in the building. Inserting an ATM card or presenting a forged check does not. Such acts are no different, for purposes of the burglary statute, from mailing a forged check to a bank or check-cashing facility. By analogy, a person who returns books to a library by depositing them in a book drop, causing the books to slide down a chute into the library, has not entered the library.

It would be unreasonable to characterize the books as “instruments” used to enter the library. But if a person reaches his or her hand into the book drop, or uses a tool, in an attempt to steal books, such

an act would constitute burglary. Our conclusion that the limits of the burglary statute should not be stretched beyond recognition does not leave the public without reasonable protection from criminal conduct, for the Legislature has enacted a variety of penal statutes that apply to the criminal activity involved in cases such as Ravenscroft or the present case. The use of an ATM card with intent to defraud, for example, specifically is penalized by

section 484g and the Legislature, of course, could enact a similar statute pertaining to check-cashing facilities. Unauthorized entry into a computer system is addressed by sections 502 and 502.01. And in the present case, our reversal of defendant’s conviction of burglary does not affect his convictions for forgery and receiving stolen property, or his resulting sentence of four years in prison.

For the reasons discussed above, we conclude that defendant’s placement of a forged check in the chute of the walk-up window of the check-cashing facility at issue cannot reasonably be termed an entry into the building for purposes of the burglary statute. Accordingly, the judgment of the Court of Appeal is reversed to the extent it affirms defendant’s conviction for burglary, and affirmed in all other respects. Mosk, J., Kennard, J., and Werdegar, J., concurred. All further statutory references are to the Penal Code, unless otherwise indicated.

Section 459 states: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, bam, stable, outhouse or other building, tent, vessel, as defined in

Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (

d) of

Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in

Section 635 of the Vehicle Code, any house car, as defined in

Section 362 of the Vehicle Code, inhabited camper, as defined in

Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by

Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”

Section 460, subdivision (a), defines first degree burglary as “burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (

d) of

Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building.” Subdivision (

b) of

section 460 provides: “All other kinds of burglary are of the second degree.” In People v.

Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903], we cited the decision in Ravenscroft, along with numerous other decisions, in support of the general proposition that “[o]ne may be liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft is different from that contemplated at the time of entry, or whether any felony or theft actually is committed.” Our decision in Montoya had no occasion to consider the specific holding or analysis in Ravenscroft that is at issue in the present case.

Blackstone’s Commentaries states that burglary “has always been looked upon as a very heinous offense; not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; an invasion, which in such a state would be sure to be punished with death, unless the assailant were the stronger.

But in civil society the laws also come in to the assistance of the weaker party; and, besides that they leave him this natural right of killing the aggressor, if he can . . ., they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity . . . .” (4 Blackstone’s Commentaries 223.) We disapprove the decision in People v. Ravenscroft, supra, 198 Cal.App.3d 639, to the extent it is inconsistent with our holding.

We do not disapprove the other aspects of the decision in Ravenscroft, including its conclusion that the ATM card in that case was inserted into the air space of the ATM. (Ante, at pp. 718-719; see People v. Nible (1988) 200 Cal.App.3d 838, 843-844 [247 Cal.Rptr. 396].) In reaching its conclusion in Ravenscroft, the Court of Appeal relied upon a federal court decision, United States v.

Goudy (7th Cir. 1986) 792 F.2d 664, that affirmed a conviction under a federal criminal statute prohibiting entering a bank with the intent to commit a felony. (18 U.S.C. § 2113(a).) Although the decision in Goudy indicates that the defendant committed the crime at the walk-up window of a drive-up facility of a bank, the opinion does not include a description of the drive-up facility or its walk-up window and does not explain specifically the manner in which the defendant used that facility.

Thus, it is unclear whether Goudy involved the insertion of a portion of the defendant’s body into the air space of the bank or the use of an instrument. The decision in United States v. Goudy, supra, 792 F.2d 664, cited and relied upon two other federal decisions involving the application of 18 United States Code

section 2113(a), United States v. Lanhford (8th Cir. 1978) 573 F.2d 1051 and United States v. Phillips (8th Cir. 1979) 609 F.2d 1271. Each of the cited decisions appears to have involved either an entry, or attempted entry, of a portion of the defendant’s body into a night depository chute or drive-up teller mechanism. Neither decision specifically considered the issue whether the insertion of a forged check or comparable item into a walk-up window constitutes an entry for purposes of the offense of burglary.

The record in the present case does not disclose whether, or to what extent, defendant reached into the chute of the walk-up window as he passed the check into the facility. As noted above, the Attorney General conceded at oral argument that no part of defendant’s body entered the check-cashing facility. We need not, and therefore do not, consider whether a slight entry of a portion of defendant’s body into the chute of the walk-up window would be a sufficient entry under the statute defining the offense of burglary.

The dissent argues that defendant entered the building by passing the forged check through the chute in the window, but attempts to limit the effects of its proposed holding by creating a new rule: “[N]o burglar at the crime scene, no burglary.” (Dis. opn., post, at p. 727.) The dissent does not explain the genesis of its proposed new rule and does not explore its consequences.

Under the dissent’s proposed rule, a person who used a remote-controlled robot, operated from across the street or across town, to enter a building for the purpose of committing larceny or any felony would not commit burglary, even though such an entry by instrument is simply a modern version of the type of entry the burglary statute was designed to punish. The dissent suggests that our opinion will “cast doubt” on the decision in People v.

Salemme, supra, 2 Cal.App.4th 775, which affirmed a conviction for burglary where the defendant entered the victim’s apartment to sell fraudulent securities. (Dis. opn., post, at p. 736.) Unlike the present case, the defendant in Salemme physically entered the apartment but argued, without success, that his “entry did not constitute burglary because the act posed no physical danger to the victim who had invited defendant in to negotiate the sale of securities.” (2 Cal.App.4th at p. 781.) In the present case, defendant does not argue that he was invited to pass the forged check through the chute.

Rather, defendant denies that he entered the check-cashing facility. Nothing in the present opinion affects the validity of the decision in Salemme.

Finally, the dissent asserts that our decision will produce anomalous results, because a person who inserts a stolen ATM card into an ATM affixed to an exterior wall of a bank does not commit burglary, but a person who enters the lobby of a bank to perform the same act does commit burglary. (Dis. opn., post, at pp. 736-737.) There is no anomaly in the circumstance that one who attempts a crime outside a building does not commit burglary, while another person who enters a building in order to attempt the same crime does commit burglary.

Burglary is defined as an entry into a specified structure with the intent to commit larceny or any felony. Under the statute, if there is no entry, no burglary has occurred.