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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Michael Wayne DAVIS, Defendant and Appellant.

No. A072849.

Decided: December 19, 1996

George Benton, Santa Rosa, for Defendant and Appellant. Office of the Attorney General, for Plaintiff and Respondent.

Michael Wayne Davis appeals his convictions of forgery, burglary, and receiving stolen property.   The court sentenced him to the aggravated term of three years for the forgery count, and imposed a one-year enhancement pursuant to section 667.5, subdivision (b).   The court further imposed the aggravated terms of three years on the remaining counts, but ordered them to run concurrently with the principal term on the forgery count.


On May 27, 1995, appellant, using the name of Michael Woody, presented a check for $274, drawn on the account of Robert Tallman, to the teller at a walk-up window of the “Cash Box,” a check-cashing facility located in a Sonoma County shopping center.   The teller informed appellant that he would have to verify the check with Mr. Tallman.   Appellant did not have Tallman's telephone number, but waited while the teller called information, and contacted Tallman.   Tallman denied making the check.   The teller contacted the police, and kept appellant busy, by asking him to complete an application for an identification card.   The teller did not see any other people, or vehicles in the area.

When arrested, appellant told the officers he did not have a car, although it was later discovered that he had keys that matched a Ford sedan parked nearby.   The arresting officer confirmed the teller's observation that there were no other vehicles or persons in the immediate vicinity.

Appellant testified that he received the check from a man named “Bob,” who he met that morning at a methadone clinic.   Bob owed appellant's acquaintance, Jeff, some money, and appellant agreed to have the check made out to him, and cash it, because he had identification.   Bob and Jeff were waiting in the parking lot while appellant attempted to cash the check, but left when he was arrested.


I.Substantial Evidence of an Entry

Appellant first contends that his burglary conviction must be reversed because evidence that he passed a forged check through the walk-up window of the check cashing facility, is insufficient to establish the element of “entry.”

 Since 1892, the courts have recognized that the codification of burglary in section 459 shares few elements with the common law crime of burglary.  (People v. Salemme (1992) 2 Cal.App.4th 775, 779, 3 Cal.Rptr.2d 398, citing People v. Barry (1892) 94 Cal. 481, 482–484, 29 P. 1026.)   In People v. Gauze (1975) 15 Cal.3d 709, 714, 125 Cal.Rptr. 773, 542 P.2d 1365, the court held that a “burglary remains an entry which invades a possessory right in a building.”   Even an entry with consent or permission may constitute burglary where the invitation to enter is given without knowledge of the defendant's felonious intent.   Nor is it necessary that the entry actually pose physical danger to the occupants.  (People v. Salemme, supra, 2 Cal.App.4th 775, 781–782, 3 Cal.Rptr.2d 398.)

 “It is well settled that an entry occurs for purposes of the burglary statute if any part of the intruder's body, or a tool or instrument wielded by the intruder, is ‘inside the premises.’ ”  (People v. Wise (1994) 25 Cal.App.4th 339, 345, 30 Cal.Rptr.2d 413.)   The most commonly recognized test for determining whether an “entry” has occurred, is to ascertain whether the defendant, or any tool or instrument used by the defendant, has crossed the boundary of the “air space” of the building.

In People v. Ravenscroft (1988) 198 Cal.App.3d 639, 243 Cal.Rptr. 827, the court concluded the insertion of an automatic teller card into an automatic teller machine installed on the exterior wall of bank constituted an “entry” within the meaning of Penal Code section 459.   The court reasoned that “[t]he 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․  [¶] ․ [¶] 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․   The insertion of a fraudulently obtained ATM card effectuates an entry into a bank's ATM for larceny just as surely as does a crowbar when applied to a vent.”  (Id. at pp. 643–644, 243 Cal.Rptr. 827 [internal citations omitted];  see also People v. Moore (1994) 31 Cal.App.4th 489, 491–492, 37 Cal.Rptr.2d 104.)

 The insertion of a forged check through the chute in the walk-up window is at least as intrusive as inserting an ATM card into a machine.   Appellant's suggestion that there is some factual basis for concluding that it was the clerk, not appellant, who passed the check through the window is not supported by the record.1  The clerk testified that the walk-up window had, “like a shoot [sic].   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.” 2

Appellant acknowledges that, if passing the check through the window is considered an entry of the building's airspace by instrument, then his argument fails.   He, however, suggests that the evidence would be insufficient to establish “entry” if we applied an alternative test, articulated in People v. Nible (1988) 200 Cal.App.3d 838, 247 Cal.Rptr. 396.   In Nible, the question before the court was whether penetration of the space between a window screen and the window constituted “entry.”   The court observed that even under the violation of airspace test applied in People v. Ravenscroft, supra, 198 Cal.App.3d 639, 243 Cal.Rptr. 827 an entry had arguably occurred, despite the fact the window was not penetrated, because the screen itself could be considered the outer boundary of the building.  (People v. Nible, supra, 200 Cal.App.3d at p. 844, fn. 3, 247 Cal.Rptr. 396.) The court nevertheless suggested what it deemed to be a more comprehensive test for determining whether an “entry” had occurred:  “The proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions.”  (Id. at p. 844, 247 Cal.Rptr. 396.)   The court concluded that, because a reasonable person expects that a screen provides some protection against unauthorized intrusions, an entry has occurred.  (Ibid.)

 We question, in the first instance, whether the Nible court's alternative test has any application at all, except in cases where the boundaries of the building's airspace are difficult to determine.   Assuming arguendo, that it applies, our conclusion that there is sufficient evidence of an “entry” remains the same.   Appellant argues that no reasonable person would expect the chute through which the check was passed to provide protection from unauthorized intrusion.  (People v. Nible, supra, 200 Cal.App.3d 838, 844, 247 Cal.Rptr. 396.)   To the contrary, protection of the cashier is precisely the reason why the structure has a walk-up window, and chute, rather than a door, or open window.   Although it is expected and authorized to use the chute to pass checks to the cashier, appellant passed the check through with felonious intent unknown and unendorsed by the occupants.  (See People v. Salemme, supra, 2 Cal.App.4th 775, 780, 3 Cal.Rptr.2d 398.)   It is also immaterial that appellant's felonious intent and act of passing a forged check posed no direct physical threat to the occupants, because the gravaman of the crime of burglary is the entry with any felonious intent, “regardless of whether actual or potential danger exists.”  (Id. at p. 781, 3 Cal.Rptr.2d 398.)



The judgment is affirmed.


1.   In fact, appellant's trial counsel all but conceded that the evidence established the element of entry, and instead focused only on the question whether he had any felonious intent.

2.   The clerk further testified that he immediately stamped the check, and then appellant signed it, and placed his thumbprint on it.   This testimony suggests that the clerk passed the check back to appellant who signed, it, applied his thumb print, and then passed it through the flap, a second time.

FOOTNOTE.   See footnote *, ante.

STEIN, Acting Presiding Justice.

DOSSEE and SWAGER, JJ., concur.