P v. McEntire (5th Dist.) Grabbing the Handle of a Sliding Glass Door When the Outer Sliding Screen Door is Open Is an "Entry" Under PC 459

While the lady of the house was getting some kip on her couch, Mr. McEntire snuck into the backyard.  The backyard entrance to the home was via two sliding doors, an exterior sliding screen in front of a glass sliding door.  The exterior sliding screen door was slid aside prior to McEntire sneaking into the backyard.  The lady awoke and saw McEntire standing at her back door, trying to open the sliding glass door.  She grabbed her dog, ran out her front door, and called 911.  While outside, she heard glass break.

Soon after, McEntire and his driver/lookout were arrested and identified as the burglars.  McEntire had smashed the sliding glass door and rifled around the house.  For this he was convicted of, among other crimes, residential burglary with an enhancement for a person being present during the burglary.  He appealed.

A Fifth District panel affirms.

The sole issue in the published portion of the opinion is whether there was sufficient evidence to support the "person present" enhancement.  Recall the resident had already fled her home before McEntire smashed the sliding glass door.  All McEntire did while the resident was still inside was to try, unsuccessfully, to pull open the sliding glass door using the handle.  For the enhancement to apply, McEntire must have made entry while someone was home.  The state argues that "entry" occurred when McEntire stuck his hand through the threshold of the open sliding screen door, such that the burglary was completed while the lady was still home.

The panel agrees.  It is an issue that arrives with a little guidance.  In P v. Nibble, a burglar used a screwdriver to pry out a window screen, at which time he was caught before he could start upon the glass pane.  The California Supreme Court affirmed the burglary conviction announcing the rule that "entry" is to be interpreted as breaching any threshold that a resident would have a reasonable expectation that a member of the public could not pass without authorization. 

If there is a flaw in the opinion its that the facts here are not really analyzed using this rule, instead supposing that which the rule requires proving without explanation.  Maybe this was the point, as there is a non-specious argument that a resident wouldn't really believe the public needed authorization to touch the sliding glass door when the screen door is open.  If my neighbor comes by to invite me over for coffee and my screen door is in the open position, I do not think I expect her to refrain from rapping on the glass door (which requires breaking the imaginary plane at issue) to see if I am home.  How else would a resident expect a caller make themselves known if the sliding screen door was open?

What if the screen door had been removed?  Is sticking your hand past an imaginary plane that a screen door would occupy an entry?  Could it reasonably be said this intangible plane is something a homeowner would not expect a visitor to breach without authorization? 

But to be fair to the panel, this was a patio door leading to the backyard.  Which is where most sliding glass doors are found.   Perhaps people have a reasonable expectation that given the less public nature of a backyard entrance, a member of the public would not touch the glass door without permission.