( Id. at p. 802, 192 Cal.Rptr. 193, fn. omitted.) Little cites only one case, People v. Lewis (1969) 274 Cal.App.2d 912, 79 Cal.Rptr. 650, wherein the property in question was being used for commercial purposes. In that case, the perpetrators were hiding in a supermarket at closing time, and engaged in a fight with the security guard inside the store. ( Id. at pp. 914–915, 79 Cal.Rptr. 650.)
Thus, the courts had recognized that our burglary law stems from the common law policy of providing heightened protection to the residence. ( People v. Gauze (1975) 15 Cal.3d 709, 712-713 [ 125 Cal.Rptr. 773, 542 P.2d 1365]; People v. Lewis (1969) 274 Cal.App.2d 912, 917 [ 79 Cal.Rptr. 650]; see also People v. Guthrie (1983) 144 Cal.App.3d 832, 847 [ 193 Cal.Rptr. 54] .) The occupied dwelling continued to receive heightened protection under our statutes in order to avoid the increased danger of personal violence attendant upon an entry into a "building currently used as sleeping and living quarters."
The principle of the Shull case was also applied in People v. Lewis (1969) 274 Cal.App.2d 912, 922 [ 79 Cal.Rptr. 650], where the appellate court struck the finding of armed in a first degree burglary case.
( People v. Jackson (1985) 37 Cal.3d 826, 832 [ 210 Cal.Rptr. 623, 694 P.2d 736]. See also People v. Lewis (1969) 274 Cal.App.2d 912, 920 [ 79 Cal.Rptr. 650] [first degree burglary dangerous enough to merit severe punishment without any aggravating factors].) The commission of rape by means of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another" (§ 261, subd. (a)(2)) self-evidently entails a threat to the life of the victim.
Hernandez contends that the crucial element for whether a house is inhabited is whether anyone sleeps there. ( People v. Lewis (1969) 274 Cal.App.2d 912, 921 [ 79 Cal.Rptr. 650].) Section 460, subdivision (a) states, "Every burglary of an inhabited dwelling house . . ., or the inhabited portion of any other building, is burglary of the first degree."
In People v. Picaroni (1955) 131 Cal.App.2d 612, 617-618 [ 281 P.2d 45], the court determined that burglary of a garage which was a separate building connected to an inhabited dwelling house by a cement walk "would be burglary of the second degree." A valid finding that defendant's burglary of Bergin's second house was first degree burglary thus depends on whether the use to which the Bergin family put that house made it "an inhabited dwelling house," within the meaning of section 460, subdivision 1. ( People v. Marquez (1983) 143 Cal.App.3d 797, 801 [ 192 Cal.Rptr. 193], quoting People v. Lewis (1969) 274 Cal.App.2d 912, 918 [ 79 Cal.Rptr. 650].) People v. Cardona, supra, 142 Cal.App.3d at page 483 states a very simple use test for determining whether a structure is an inhabited dwelling house — "[T]he crucial element in determining whether a house is being used for dwelling purposes is whether anyone sleeps in it."
See People v. Valdez (1962) 203 Cal.App.2d 559. In People v. Lewis (1969) 274 Cal.App.2d 912 the Court stated that `inhabited dwelling house' was intended to mean a building currently (emphasis added) used as sleeping and living quarters. "The definition of `inhabited dwelling' in Lewis was not necessary to the decision since the court found that the defendant was a first degree burglar by reason of the fact that he was armed. Despite its being dictum the court's statement is a correct statement of the law."
In People v. Gauze (1975) 15 Cal.3d 709, 714 [ 125 Cal.Rptr. 773, 542 P.2d 1365], while observing that a burglary consists of "an entry which invades a possessory right in a building," we had occasion to review the broad underlying basis for the criminal sanction against the particular act and intent constituting burglary. (5) Therein, we quoted the rationale set forth in People v. Lewis (1969) 274 Cal.App.2d 912, 920 [ 79 Cal.Rptr. 650]: "`Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation — the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.
Burglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants. People v. Lewis, 274 Cal.App.2d 912, 920, 79 Cal.Rptr. 650, 655 (1969). This concern is reflected in the Reporter's Comments to La.R.S. 14:60: "there may also be great danger to human life in the burglarization of vessels, trailers, and the like."
Such a reading would be entirely inconsistent with the purposes of section 459. As aptly articulated by the Court of Appeal in People v. Lewis (1969) 274 Cal.App.2d 912, 920 [ 79 Cal.Rptr. 650], "Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation — the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.