Opinion
A165996
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. ANGELO BOTONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 22-NF-001340-B)
GOLDMAN, J.
Angelo Botones appeals from his conviction for first degree burglary pursuant to Penal Code section 460, subdivision (a). He was charged with burglary after entering a house that had been badly damaged by a fire and that was unoccupied pending construction to make it safe for habitation. The family that lived in the home before the fire intended to return once city permits had been granted and reconstruction was complete.
Undesignated statutory references are to the Penal Code.
Botones argues that there is insufficient evidence to prove that the residence was "inhabited" within the meaning of sections 459 and 460, subdivision (a). Because the home was uninhabitable due to water, smoke, and other fire-related damage, and the family was using the home mostly for storage, he contends that the family could not reasonably expect the home to be protected from unauthorized intrusions. He urges us to overturn his conviction for first degree burglary and reduce his sentence accordingly. We disagree and affirm.
BACKGROUND
A fire started in the garage of Winnie Moreno's family home. The family evacuated the burning house quickly and left their possessions behind. At the time, Moreno, her husband, and their two children had lived in the house for six years.
The fire caused significant damage to the home, which was not safe for the family to occupy. Moreno's insurance company boarded up the house's windows. The front of the home was not readily accessible due to a pile of burned debris in the driveway in front of the garage and a warped front door that was difficult to open. To access the interior of the house, Moreno had to enter through the side gate into the backyard, and then through the back door. When firemen responded to the fire, they broke one of the side gates, which thereafter was attached by only the bottom hinge. Insulation and other debris were left behind from the emergency response. The kitchen, roof, walls, and garage needed to be rebuilt before the family could move back in.
Moreno testified that she and the family would have remained in the home had the fire not occurred, and they intended to return once renovations were complete. In the meantime, they visited almost daily to retrieve salvageable belongings and to clean up. Because they did not have storage space, the family left some salvageable belongings behind. They took steps to protect the home from intrusion, including propping a wooden pallet against the back door that would not close, propping the side gate in place to make it appear intact, and working with neighbors, who watched the house and reported any suspicious activity. They were at the home the day before the burglary.
Roughly a month after the fire, police found Botones and two other individuals at the home. Officers made contact with Botones as he emerged from the backyard, the family's property in his hands.
After the close of evidence at trial, Botones moved for a judgment of acquittal, arguing that the evidence established the residence was not inhabited within the statutory meaning. The court denied the motion.
The jury found Botones guilty of burglary of an inhabited dwelling.
DISCUSSION
Botones argues that there is insufficient evidence to support his conviction for first degree burglary because Moreno's home was not inhabited at the time of the burglary. "In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Vasquez (2015) 239 Cal.App.4th 1512, 1516.)
The definition of "inhabited," for purposes of section 460, is found in section 459. A house is "inhabited" if it is "currently being used for dwelling purposes, whether occupied or not." (§ 459.) The statute further provides that a house "is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises." (Ibid.) The case law identifies several factors that bear on the question whether a home is inhabited, including most importantly the subjective view of the home's owner. (People v. Burkett (2013) 220 Cal.App.4th 572, 580, 581-582 [in this context,"' "[t]he dispositive element is whether the person with the possessory right to the house views the house as his dwelling"' "]; see, e.g., People v. Hughes (2002) 27 Cal.4th 287, 354-355 [where resident started moving out, but was present in apartment daily and did not intend to vacate yet, apartment was "inhabited" for purposes of sections 459 and 460].) Even if the person arguably was unable ever to return to the property at the time of the burglary, where the evidence shows an undisputed intent to return, the residence is "inhabited" for purposes of the burglary statutes. (People v. Meredith (2009) 174 Cal.App.4th 1257, 1268-1269.)
Here, Moreno unequivocally testified that she and her family intended to continue living in their home once renovations were complete and they were allowed to return. That they temporarily did not occupy the home does not defeat their subjective intent. (People v. Meredith, supra, 174 Cal.App.4th at p. 1268; People v. Marquez (1983) 143 Cal.App.3d 797, 800-802.) In addition, we must credit the uncontroverted testimony that the family left the home only because of "a natural or other disaster," and therefore that the home meets the statutory definition of "inhabited." (§ 459, italics added.)
People v. Aguilar (2010) 181 Cal.App.4th 966 (Aguilar) confirms our view. In Aguilar, "residents of an apartment building were temporarily relocated to a hotel because of a fire in one of the units.... When the victim [re]entered his apartment, he found [the] defendant inside . . . using some of [his] belongings." (Id. at p. 968.) On appeal, the defendant argued that there was insufficient evidence that the apartment was inhabited, and therefore that his conviction for first degree burglary could not stand, because a few days after the burglary the apartment was deemed uninhabitable and the victim was told he would not be allowed to return. (Id. at pp. 968-969.) The Aguilar court noted that sections 459 and 460 afford a home increased protection and confirmed "that the issue of habitability under section 459 is viewed through the eyes of . . . the alleged victim of the burglary." (Id. at p. 970.) Given the victim's testimony that he intended to return to his apartment at the time of the burglary, and the fact that the family was forced to relocate to a new apartment due to a "disaster" within the meaning of section 459, "the apartment unquestionably fell within the definition of 'inhabited.'" (Id. at pp. 971-972.)
Botones attempts to distinguish Aguilar factually, arguing that at the time of the burglary in that case, the victim had only been out of the home for a few days, whereas here, the family had been relocated for roughly a month. He also points to Moreno's acknowledgement that the home was not safe to live in and that she was using the space for storage at the time of the burglary. Therefore, he argues, the policy considerations underlying the special protection afforded the home are not present in these circumstances, where no reasonable person would consider the home habitable, citing People v. Brown (1992) 6 Cal.App.4th 1489, 1496.
The distinctions Botones draws are not material, particularly upon review for sufficiency of the evidence. The amount of time the family has been relocated is not determinative or even remarkable in this case. (Cf. People v. Marquez, supra, 143 Cal.App.3d at pp. 800-802 [finding home "inhabited" for purposes of sections 459 and 460, where owner was subject to a conservatorship and had been confined to a boarding home for two and a half years at the time of the burglary, but never abandoned or intended to relocate permanently from the residence].) People v. Brown involved a different question from the one presented here-namely, whether an unenclosed porch should be deemed part of the residence for purposes of section 198.5, which creates a rebuttable presumption that a residential occupant has a reasonable fear of death or great bodily injury when the occupant uses deadly force against an unlawful and forcible intruder into the residence. (People v. Brown, supra, 6 Cal.App.4th at pp. 1495-1499.) The court looked to cases evaluating whether a residence had been entered for the purposes of the burglary statute, not cases concerning the test for whether a house is inhabited. The standard the court identified and that Botones quotes-"whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions" (id. at p. 1496)-is not the measure of inhabitation.
Moreno's testimony plainly meets the applicable standards under section 459. There is sufficient evidence to show that she and her family subjectively intended to return to the home. And under the "disaster" provision of the statute, the only reason the house was not occupied was because of the fire. Notwithstanding the home's condition, the family took reasonable measures to protect the home from intruders, and Aguilar expressly rejected the view that a home's "technical" uninhabitability was relevant where unrebutted evidence showed that the residents of the home subjectively intended to return and would have continued living there were it not for a fire. The family returned to the house almost daily, including on the day before the burglary. Because the family here viewed the residence as their home, and behaved consistently with their subjective intent to return, the policies underlying the first degree burglary statute support the conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J., STREETER, J.