People v. Burkett
2013 WL 5629791, 220 Cal.App.4th 572, 163 Cal. Rptr. 3d 259 (2013)
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Rule of Law:
A dwelling is not considered 'inhabited' for the purposes of first-degree burglary if the previous occupant has permanently vacated and the owner has only a future intent to move in, without having taken any tangible steps to establish the house as their current dwelling.
Facts:
- Mersa Noor owned a house on Michigan Avenue, which he rented to Barbara Mattos from 2008 until April 2011.
- Noor was losing his own home to foreclosure and needed to move back into the Michigan Avenue property, so he gave Mattos a one-month notice to vacate.
- By April 30, 2011, Mattos had removed all of her belongings, cleaned the house, and turned off all utilities effective May 1.
- Mattos still possessed all the keys to the residence and had not yet returned them to Noor.
- As of May 2, 2011, Noor had not moved any of his belongings into the vacant house and planned to move in sometime after May 4.
- On the afternoon of May 2, 2011, Penny Lynn Burkett and an accomplice, Nicholas Cummings, were seen emerging from the backyard of the Michigan Avenue house.
- Shortly thereafter, the house was discovered to have been broken into and vandalized, with a furnace, pipes, and other fixtures damaged or removed.
- Burkett's fingerprints were found on the inside of the furnace closet door.
Procedural Posture:
- Penny Lynn Burkett was charged with first-degree burglary and vandalism in a California state trial court.
- A jury convicted Burkett on both counts, making a special finding that the burglarized dwelling was inhabited, which supported the first-degree burglary conviction.
- The trial court imposed a four-year midterm sentence for the burglary, which was suspended, and granted probation.
- Burkett, as the appellant, appealed the judgment to the California Court of Appeal, Third Appellate District.
- On appeal, Burkett contended that the evidence was insufficient to support the jury's finding that the dwelling was inhabited.
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Issue:
Does a house qualify as an 'inhabited dwelling' for a first-degree burglary conviction when the former tenant has moved out completely and turned off utilities, and the landlord-owner has not yet moved in any belongings, turned utilities on, or received the keys, but intends to occupy the house in the near future?
Opinions:
Majority - Raye, P. J.
No. A house does not qualify as an inhabited dwelling under these circumstances. For a dwelling to be 'inhabited' under the Penal Code, it must be 'currently being used for dwelling purposes.' In this case, the prior tenant, Mattos, had permanently vacated with no intent to return, rendering the dwelling uninhabited from her perspective. The owner, Noor, had not yet begun to use the house for dwelling purposes; he had only a future intention to do so. The absence of his belongings, the lack of utilities, and the fact he did not even possess the keys demonstrate that his habitation had not commenced. This situation is distinct from a temporary absence, such as a vacation, where a resident intends to return to their established home. The owner's mere intent to occupy a vacant property in the future is insufficient to make it 'inhabited' for the purposes of first-degree burglary.
Concurring-in-part-and-dissenting-in-part - Nicholson, J.
Yes. The house should be considered an inhabited dwelling. The dispositive factor should be the owner's intent at the time of the burglary, not at the time the owner previously moved out. Because Noor had previously lived in the house and, at the time of the offense, had a present intent to move back in and make it his home again, the house retained its character as an inhabited dwelling. This situation is akin to a vacation home, which remains inhabited even when unoccupied. To hold otherwise improperly prioritizes an owner's past intentions over their present intention to reside in the dwelling, which is the intention that elevates the danger associated with a residential burglary.
Analysis:
This decision clarifies the meaning of 'inhabited dwelling' for first-degree burglary, particularly in the context of a change in occupancy. It establishes that a landlord's subjective future intent to occupy a property is insufficient to render it inhabited after a tenant has completely and permanently vacated. The ruling reinforces the statutory requirement of 'currently being used for dwelling purposes,' demanding some objective indicia of habitation, not just a plan. This precedent narrows the scope of first-degree burglary, requiring prosecutors in similar transitional cases to prove more than a mere intention to move in to secure a conviction for the greater offense.
