The California Supreme Court is very bright. Though it might want to brush up a little bit on physics.
It holds today that in order to count as "burglary" some part of your body or tool or something from the outside has to actually enter the building. We'll call that the "air space" test (for lack of a better term). It's not enough that you "break" (e.g., open a door) a residence. You've also got to "enter." The classic definition of "breaking and entering." Your entry doesn't have to be much. Just the tiniest little bit counts. Either of a part of you or of something else. Something from the "outside" of the building. But when nothing from the outside comes in, you haven't entered, so it's not burglary.
I agree.
That's admittedly a somewhat artificial test. It means, for example, that when you open a door that opens out you haven't committed burglary (because your hand never entered) but when you open a door that opens in you have. But I agree with Justice Liu when he says -- responding to a different hypothetical -- that just because lines may be somewhat arbitrary doesn't mean they're wrong. We have lines because they roughly approximate our values and diminish uncertainty and transaction costs. That they're only approximate doesn't negate their validity.
So I agree with the test the California Supreme Court adopts. As do all the justices. The opinion is unanimous.
But I nonetheless must take issue with two components of the opinion.
First, Justice Liu discusses a couple of cases in which someone broke down a door with their foot and was convicted of burglary and says that those opinions are correct because it's reasonable to conclude that if you do so some portion of your foot entered the building on the follow-through. That may well be wrong, for two reasons, one of which is doctrinal and the other of which is factual.
Doctrinally, the opinions in those underlying cases affirmed the conviction even though the prosecutor argued (and the court agreed) that even if the foot didn't enter the building it was still burglary because the door did. Justice Liu rightly holds that the latter theory doesn't work, but that the former does, and says that since the former works, the conviction stands. But if there are two theories presented at trial and allowed to go to the jury, and one is legally insufficient, that makes the conviction improper -- not proper -- since you can't tell which one the jury bought. So those cases should come out the other way as a matter of law.
Moreover, factually, it's simply untrue that when you kick in a door -- or use another object to bust it open -- your foot enters at least a portion of the residence on the follow-through. Not if you do it the right, and most effective, way. Physics teaches us that you get more power off of recoil than you do with follow-through. That's why solar sails, for example, are reflective. And why tanks are covered with collapsing material and cars have crumple zones. The right way to bust down a door is not to go hog wild with the follow through but to have your foot (or battering ram) bounce off the door, thereby maximizing force. So you don't enter the residence at all. You hit it, bounce off, and stay outside the residence at all times. (Sure, there's necessarily a nanometer or whatever of compression, but that's no more "entering" than is a polite knock on the door: compression remains on the "outside.") So it's not like you can say that kicking a door down necessarily (or even generally) enters. You've got to have some evidence that there was actually entry. Not mere speculation that the defendant probably did it the wrong way.
So that's my first physics lesson for the day. From a guy who last took it twenty five years ago.
My second piece of physics advice relates to the application of the Court's principle to the case at hand. The defendant here was charged with burglary when he used a remote control to open the garage door of the residence (but was run off by the homeowner before he physically entered). The Court holds that on no version of the facts did anything from the outside actually enter any portion of the residence -- even though a body part or tool or anything else from the outside would count -- and so the defendant categorically can't be charged with burglary.
Even though I agree with the test, I'm not so sure that's right.
The Court's right that the guy himself didn't enter, nor did a lockpick or anything else. But I'm pretty certain that one thing from the outside did enter the garage, and directly resulted in the opening of the door: the radio or surface acoustic wave from the remote control.
Virtually all garage door remote receivers are located inside the garage; i.e., inside the residence. The defendant deliberately used the remote to transmit an electronic wave inside the residence in order to affect his break. The wave entered. The wave resulted in the break. Isn't that just as much of an entry as a lockpick or the sole of a shoe? Why isn't that sufficient?
You might perhaps articulate a theory that electronic entries are categorically different. But I'm not sure such a position would be tenable. And at the very least, you'd have to articulate the theory. Not merely assume without deciding that it's true, which is what the California Supreme Court does here.
any set of facts that might suffice, the indictment stands, right? The facts here might indeed be sufficient.
And even if I'm wrong, isn't the California Supreme Court simply wrong to say -- as it expressly does -- that "[o]n these facts, defendant may be charged with attempted burglary, but he cannot be charged with a completed burglary." Seems to me the most it can say is that the can't be charged with a completed burglary unless the electronic entry was sufficient, in which case he can. So you'd either have to (1) decide the issue, or -- more likely -- remand to the lower court for a determination. Rather than do what the Court here does and dismiss the indictment entirely.
So I like what the Court does here. It's smart.
But I think it could be smarter.
