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Name: People v. Jackson
Case #: B218372
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/08/2010

The unauthorized entry onto a balcony that is attached to a residence and is functionally connected with it, with the intent to commit theft, constitutes first degree burglary. The manager of an apartment complex saw appellant halfway inside the victim’s apartment and halfway on the attached balcony. Appellant was subsequently charged with and convicted by jury of first degree burglary. On appeal, appellant argued instructional error, contending that whether the balcony was part of the structure was a jury question. The court disagreed. The question is one of law, and not fact. In determining whether a structure is part of an inhabited dwelling, the inquiry is whether it is functionally interconnected with and immediately contiguous to other portions of the house. A second inquiry in determining whether the balcony falls within the burglary statute is whether a reasonable person would believe the structure encloses an area into which the general public may not pass. The balcony here opened directly to the living room of the apartment, separated by a sliding screen and sliding glass door. The only direct access was via the apartment. Under these facts, it was part of the inhabited dwelling. And, even if the instruction given as to the balcony was wrong, it was harmless as the evidence showed that appellant was seen half way inside the apartment itself.