Moore

Claudell Moore appeals from a judgment of conviction for first degree burglary. He contends the jury was improperly instructed on the “entry” element of the offense, and insufficient evidence supported its implied finding of entry.

An information charged Moore with residential burglary (Pen. Code, § 459 ) and a prior serious felony conviction (§ 667 subd. (a)). The information was later amended to add five prior prison terms (§ 667.5, subd. (b)).

At trial, it was established that the alleged victims, Jacqueline Marquez and Derrick Augustine, are both deaf. Marquez testified she noticed Moore knocking on the front door of their Castro Valley apartment at approximately 11 a.m. on May 26, 1993. The apartment has a screen door in front of a wooden door. The screen door locks, but was not locked on that day. In order to reach the wooden door, it is necessary to pull back the screen door. After Marquez awakened Augustine, the couple noticed Moore attempting to open the door by turning the knob. Moore left the door and went to a car, returning with a green “towel” wrapped around his hand and a tire iron. Moore used the tire iron on the door. Augustine testified he saw the tip…