Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA060035, Rick Brown, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Robert Edward Standard appeals the judgment entered following conviction by jury of first degree burglary, receiving stolen property and driving a vehicle without the owner’s consent. (Pen. Code, §§ 459, 496d, subd. (a); Veh. Code, § 10851, subd. (a).) Standard admitted a prior serious felony conviction within the meaning of section 667, subdivision (a)(1) and the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and admitted two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Standard to a term of 16 years and 4 months in state prison.
Subsequent unspecified statutory references are to the Penal Code.
Standard contends the evidence was insufficient to support the conviction of first degree burglary. We agree and order the burglary conviction reduced to second degree burglary and remand the matter for resentencing. Based on this resolution, we need not reach Standard’s further claim the trial court erroneously instructed the jury on the definition of an inhabited dwelling.
BACKGROUND
On September 15, 2007, at about 10:30 a.m., a neighbor saw a Honda driven by Standard stop in front of a home in Chatsworth owned by Prince Okosun. Standard looked in the mailbox, then parked the Honda in the driveway and went into the back yard. Five minutes later, Standard kicked the front door open and entered the residence. He returned shortly thereafter to the Honda with a cardboard box containing property. The neighbor telephoned the police.
Half an hour later and approximately half a mile away, police officers saw the Honda, driven by Standard, enter a gas station/mini mart. When the officers stopped in front of the Honda, patrons of the gas station indicated the individual driving the Honda had jumped over a wall into a townhome complex. Standard was found inside the complex. The Honda, which had been stolen and had a punched ignition, contained burglary tools and property taken from the residence. Standard’s fingerprints were found on the Honda.
Okosun testified that when he went to the home on September 15, 2007, he found the front door had been broken, the interior “was in shambles,” and “all the drawers” in the bedroom had been opened. A briefcase containing real estate documents, birth certificates and old pictures was missing. The police returned to Okosun a briefcase, a cardboard box, tax papers, and a letter from his wife. Okosun went to the house two or three times a week to collect the mail and to put out the trash.
On cross-examination, defense counsel asked when Okosun last lived in the residence. Okosun testified he and his family had purchased another home. On the date of the burglary, no one lived in the Chatsworth home and the last time the house was occupied on a regular basis was one month before the burglary. Most of the furniture had been moved from the Chatsworth residence but there remained in the home a large bed, a dresser, a dining table and two twin beds in the children’s room. Okosun indicated he owned the house, it was not for sale and he was trying “to reconstruct” the home so it could be rented.
DISCUSSION
1. The degree of the burglary conviction must be reduced.
Standard contends that because the Okosuns had permanently departed the residence and no new tenant had moved in, the residence was uninhabited at the time of the burglary. Standard concludes the conviction of first degree burglary must be reduced to second degree burglary. We agree.
Section 460, subdivision (a), provides that “[e]very burglary of an inhabited dwelling house . . . is burglary of the first degree.” Section 460, subdivision (b) states: “All other kinds of burglary are of the second degree.” Section 459 provides, “ ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”
The “ ‘ “inhabited-uninhabited” dichotomy turns not on the immediate presence or absence of some person but rather on the character of the use of the building.’ ” (People v. Marquez (1983) 143 Cal.App.3d 797, 801.) An “inhabited dwelling house” has been described as a “ ‘a structure where people ordinarily live and which is currently being used for dwelling purposes. [Citation.]’ ” (People v. DeRouen (1995) 38 Cal.App.4th 86, 91, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 864, 866.)The residence “ ‘need not be the victim’s regular or primary living quarters’ ” in order to be deemed an inhabited dwelling house. (People v. Villalobos (2006) 145 Cal.App.4th 310, 318; People v. Fond (1999) 71 Cal.App.4th 127, 130.) Thus, a vacation home is inhabited even when the owners are not present. (People v. DeRouen, supra, 38 Cal.App.4th at p. 92.) Similarly, a house is considered inhabited even though the resident, under conservatorship, is absent for a substantial period of time but intends to return to the home. (People v. Marquez, supra, at p. 802.)
However, a structure that was once used for dwelling purposes is no longer inhabited when its occupants permanently cease using it as living quarters, and no other person is using it as living quarters. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 132.) A structure is uninhabited when the residents move and no identifiable person is currently using it as living quarters, even if the prior residents leave property behind with the intent of retrieving it later. (People v. Cardona (1983) 142 Cal.App.3d 481, 483-484; People v. Valdez (1962) 203 Cal.App.2d 559, 563.)
“Just as we look to the intent of the intruder at the time of entry in determining whether the crime of burglary was committed, so must we look to the intent of the occupier or person entitled to occupy the dwelling to determine if it is inhabited within the meaning of Penal Code section 459.” (People v. Marquez, supra, 143 Cal.App.3d at p. 801.) Thus, in People v. Hernandez (1992) 9 Cal.App.4th 438, 442, an apartment was inhabited where the new tenants had moved their belongings into the apartment intending to occupy it as their residence even though they had not yet slept there.
Applying these principles here, it is apparent the Chatsworth residence was not inhabited at the time of the burglary. Okosun testified he and his family moved to a new residence a month before the burglary and they did not intend to return to live in the Chatsworth home. Although some of Okosun’s personal property remained in the home, Okosun went to the home only to retrieve mail and to prepare the home for rental. Because the Okosuns were not temporarily absent but had permanently vacated the home with no intention to return and use the home as their residence and no new tenant had moved in, the residence was uninhabited within the meaning of the burglary statutes. (People v. Cardona, supra, 142 Cal.App.3d at p. 484; People v. Valdez, supra, 203 Cal.App.2d at p. 563.)
2. The People’s arguments to the contrary are not persuasive.
The People argue “it was not at all clear that the Okosuns did not intend to inhabit the house again” and there was no evidence indicating whether the utilities had been turned off. The People claim it was possible the Okosun family “could have spent the night at their old house for reminiscence sake, out of necessity, or for a host of other reasons.”
People v. Hughes (2002) 27 Cal.4th 287 comes closest to supporting the People’s view of the evidence. In Hughes, the resident of an apartment moved some of her personal possessions to her boyfriend’s home in preparation of vacating her own apartment. The victim had slept in her boyfriend’s home for two weeks prior to the intrusion but her furnishings remained in the apartment and the utilities remained on. The victim was killed when she returned to the apartment to clean it. (Id. at pp. 316, 354.) Hughes found “the evidence reflects only that [the victim] had begun to move to her boyfriend’s house, and was still in the process of doing so; it does not reflect that she ‘already’ had moved, as defendant asserts.” (Id. at p. 354.) Hughes concluded the evidence did not establish that the victim would not sleep there again, noting all her furniture and personal belongings remained in the apartment and the utilities remained on. (Id. at p. 355.)
Here, unlike the situation in Hughes, the Okosun family was not in the process of moving. They already had moved from the Chatsworth residence and did not intend to occupy the Chatsworth residence in the future. While it is possible the Okosuns might have inhabited the residence again, the Chatsworth home was not their residence at the time of the burglary. Rather, the Okosuns were using the Chatsworth residence as a storage facility, not a residence.
Under these circumstances, the residence was not inhabited. Consequently, the degree of the burglary conviction must be reduced.
DISPOSITION
The judgment is modified to reduce the conviction of first degree burglary from first to second degree burglary. In all other respects, the judgment is affirmed and the matter is remanded to the trial court for resentencing.
We concur: CROSKEY, J., KITCHING, J.