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Name: Magness v. Superior Court
Case #: C066601
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/10/2011
Subsequent History: Rev. granted 9/21/11 (S194928)

Use of a remote control from a distance away to open the garage door to the attached garage is not first degree burglary. Petitioner was held to answer on a first degree burglary charge following presentation of evidence at the preliminary hearing that he had used a remote control to open the garage door. The control had been taken from the resident’s locked vehicle that was parked in the driveway. Petitioner did not enter the garage and ran away when the resident attempted to confront him. Following the preliminary hearing, petitioner filed a petition for writ of prohibition which the appellate court granted, finding the offense, at most, was an attempted burglary. Construing the meaning of Penal Code section 459, the court found that the mere opening of a door, even an unauthorized opening, is not an entry for purposes of burglary. Opening the door is relevant only to the common law element of breaking for burglary, and not to entering. Under California law, because the Legislature never required a “breaking” for the crime of burglary, it would be contrary to the legislative intent to conclude that one who merely opens a closed door, without otherwise intruding into the building, has entered for the purposes of the crime of burglary.