Opening a Garage Door with a Stolen Garage Door Opener is Only Attempted Burglary, Not a Completed Burglary
June 27, 2012 By Greg Hill & Associates
Our offense has received several calls over the years about a romantic relationship that ended, but one party retains possession of a remote control garage door opener to the garage of the other person. The caller asks us what we can do or they should do to prevent the other party from burglarizing their home, where they are no longer welcome.
The following case addresses this issue, although with slightly different facts.
On the evening of July 24, 2010, in Sacramento County, Timothy Loop was at home when he heard the garage door of his home opening. He had not authorized anyone to enter his garage and so hearing the door opening was quite a surprise.
Loop got out of bed and ran to his garage, where he saw Christopher Magness standing at the end of his driveway. Magness dropped the remote control and ran away. Loop chased Magness on a bike and saw him enter a house. Police were then called and Magness was arrested.
Evidence was later discovered that Magness had taken the remote control from Loop’s car parked in the driveway.
Magness was then then charged with attempted first degree burglary of an inhabited dwelling (Penal Code §§ 664, 459 and460 (a)) and second degree burglary of an automobile (Penal Code §§ 459 and 460 (d)).
At the preliminary hearing, the prosecutor argued that there was a completed home burglary and the judge agreed, reasoning, that opening the garage door was an entry into the home.
Defendant then filed a motion to reduce the charge to attempted burglary. The motion was denied by the trial court and so Magness filed a writ of prohibition in the Court of Appeal. The Court of Appeal then granted Magness’ writ.
The prosecution next appealed to the California Supreme Court. In the published opinion of Christopher Magness v. The Superior Court of Sacramento County (2012 DJDAR 7503), the Supreme Court agreed that the mere act of opening the garage door was only attempted burglary, not a completed entry into the home.
The Supreme Court first discussed a series of published opinions that had similar facts and where the central issue was whether attempted burglary or burglary took place (Penal Code § 459).
The Supreme Court found it crucial that while defendant may have committed a “breaking” in the context of entering by opening the garage door, “he did not ever enter the residence.” No part of his body or tools penetrated the outer boundary of the residence. Moreover, there was no allegation, for example, that defendant reached under the bottom of the garage door with his hand or with a tool. There was no physical entry into the structure. In short, the court held, “something that is outside must go inside for an entry to occur.”
Accordingly, the Supreme Court affirmed the judgment of the Court of Appeal.
ABOUT THE AUTHOR: Greg Hill, Greg Hill and Associates
This article was written by Greg Hill. He has defended felons charged with possession of a handgun many times, as well as other offenses, all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998).
Copyright Greg Hill & Associates
More information about Greg Hill & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
On the evening of July 24, 2010, in Sacramento County, Timothy Loop was at home when he heard the garage door of his home opening. He had not authorized anyone to enter his garage and so hearing the door opening was quite a surprise.
Loop got out of bed and ran to his garage, where he saw Christopher Magness standing at the end of his driveway. Magness dropped the remote control and ran away. Loop chased Magness on a bike and saw him enter a house. Police were then called and Magness was arrested.
Evidence was later discovered that Magness had taken the remote control from Loop’s car parked in the driveway.
Magness was then then charged with attempted first degree burglary of an inhabited dwelling (Penal Code §§ 664, 459 and460 (a)) and second degree burglary of an automobile (Penal Code §§ 459 and 460 (d)).
At the preliminary hearing, the prosecutor argued that there was a completed home burglary and the judge agreed, reasoning, that opening the garage door was an entry into the home.
Defendant then filed a motion to reduce the charge to attempted burglary. The motion was denied by the trial court and so Magness filed a writ of prohibition in the Court of Appeal. The Court of Appeal then granted Magness’ writ.
The prosecution next appealed to the California Supreme Court. In the published opinion of Christopher Magness v. The Superior Court of Sacramento County (2012 DJDAR 7503), the Supreme Court agreed that the mere act of opening the garage door was only attempted burglary, not a completed entry into the home.
The Supreme Court first discussed a series of published opinions that had similar facts and where the central issue was whether attempted burglary or burglary took place (Penal Code § 459).
The Supreme Court found it crucial that while defendant may have committed a “breaking” in the context of entering by opening the garage door, “he did not ever enter the residence.” No part of his body or tools penetrated the outer boundary of the residence. Moreover, there was no allegation, for example, that defendant reached under the bottom of the garage door with his hand or with a tool. There was no physical entry into the structure. In short, the court held, “something that is outside must go inside for an entry to occur.”
Accordingly, the Supreme Court affirmed the judgment of the Court of Appeal.
ABOUT THE AUTHOR: Greg Hill, Greg Hill and Associates
This article was written by Greg Hill. He has defended felons charged with possession of a handgun many times, as well as other offenses, all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998).
Copyright Greg Hill & Associates
More information about Greg Hill & Associates
View all articles published by Greg Hill & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
