People v. Cardona

Opinion

BROWN (Gerald), P. J.

Antonio Cardona appeals his conviction of first degree burglary (Pen. Code, §§ 459, 460), contending he is guilty only of second degree burglary as the house he entered was not inhabited at the time.

On September 12, 1981, Keith Fuller and his family moved out of the house they rented on Jefferson Street in Carlsbad. The Fullers spent the night of September 12 in their new home in Oceanside. They did not intend ever to spend another night at the Jefferson Street house. They, however, had paid rent on the house through September 15 and, as of September 13, had not completed moving all their belongings out of the house. On the night of September 13, Cardona broke into the Jefferson Street house with the intent to steal some of the Fullers’ belongings that were still stored there. Cardona was caught redhanded by the Fullers, who had returned to the house to pick up some of their belongings.

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Cardona was charged with first degree burglary. At trial, he argued he was guilty only of second degree burglary because the house was not inhabited at the time of the burglary. The superior court found the house was inhabited by the Fullers and found Cardona guilty of first degree burglary. The court found this is an unusual case under the criteria of California Rules of Court rule 416 and thus Penal Code section 462, prohibiting a grant of probation where defendant is convicted of first degree burglary, does not apply. Cardona was granted three years probation on the conditions he participate in an alcoholic rehabilitation program, report his employment status to his probation officer, violate no law and serve 307 days in custody with credit for 307 days served.

A burglary is of the first degree only if it is of an inhabited dwelling house during the nighttime (Pen. Code, § 460). Penal Code section 459 defines “inhabited” as it is used in section 460 as meaning “currently being used for dwelling purposes, whether occupied or not.” The issue here is whether the Fullers continued to use the house on Jefferson Street for dwelling purposes after they permanently stopped sleeping there but had not yet moved all their belongings out or lost the right to possess the house.

Penal Code section 459 clearly states a house remains “inhabited” despite the fact it is empty at the time of the burglary. Furthermore, a house remains inhabited even if the burglary occurs while the residents are away for an extended period of time