Here's the opening paragraph of this opinion:
"Defendant Jammal Yarbrough appeals from a judgment entered following a jury trial in which he was convicted of first degree burglary for having entered a second-floor unenclosed balcony of an apartment with intent to commit a theft. He contends the court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute and that the facts disclosed only an attempted burglary. We agree because the Supreme Court in People v. Valencia (2002) 28 Cal.4th 1 (Valencia) stated "the outer boundary of a building for purposes of burglary . . . does not encompass . . . [an] unenclosed balcony . . . ." (Valencia, at p. 12, fn. 5.).
To which I thought: "Wow. That's mighty big of you, Court of Appeal. You're willing to follow the express and unambiguous holding of the California Supreme Court. You must be mighty proud of yourself."
But then, midway through the opinion, I discover that it sort of is big of the Court of Appeal. Since just last year, their colleages in Division Four (this opinion's from Division One) held otherwise, deciding -- notwithstanding the California Supreme Court's statement in Valencia -- that entering an unenclosed balcony was burglary.
So I take back my initial thoughts, Division One. Sorry to have doubted you.
Let's see if the California Supreme Court takes up the split. Seems like it's common enough so that whether you go to prison or not shouldn't decide on which panel you draw."Defendant Jammal Yarbrough appeals from a judgment entered following a jury trial in which he was convicted of first degree burglary for having entered a second-floor unenclosed balcony of an apartment with intent to commit a theft. He contends the court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute and that the facts disclosed only an attempted burglary. We agree because the Supreme Court in People v. Valencia (2002) 28 Cal.4th 1 (Valencia) stated "the outer boundary of a building for purposes of burglary . . . does not encompass . . . [an] unenclosed balcony . . . ." (Valencia, at p. 12, fn. 5.)."
