Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD063820 Valeriano Saucedo, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Dawson, J.
INTRODUCTION
On June 29, 2009, a fourth amended petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, A.A., committed the following felonies: first degree burglary of an inhabited dwelling (Pen. Code, § 459, count 1), vandalism (§ 594, subd. (a), counts 2, 3, 6, 7, 10, 12, 14, & 15), driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 4), second degree commercial burglary (§ 459, counts 5, 8, & 11), receiving stolen property (§ 496, subd. (a), count 9), and arson (§ 451, subd. (d), count 13). After a contested jurisdiction hearing, the juvenile court found count 6 to be a misdemeanor and count 11 not true. The court found the remaining allegations true as felonies.
Unless otherwise designated, all statutory references are to the Penal Code.
The jurisdiction hearing occurred in stages from May 27, 2009, through July 20, 2009.
On July 28, 2009, the court declared appellant a ward of the court, ordered him to serve time in juvenile hall, and placed him on probation upon various terms and conditions. Appellant contends there was insufficient evidence in count 1 that the dwelling he burglarized was inhabited and this allegation must be reduced to second degree burglary. We disagree and will affirm the juvenile court’s judgment.
Because the only issue on appeal concerns the facts underlying count 1, our factual summary is limited to the evidence of that allegation.
FACTS
On January 10, 2009, Dawn Rowe’s neighbor in Lindsay called to tell her that the windows to her house were open. When Rowe arrived, she found several windows open, the back sliding door was open, and she saw muddy footprints inside the house. Rowe discovered 15 to 20 pieces from her husband’s knife and sword collection had been taken. The knives were stored in a box on a shelf and the swords were behind a cabinet. One sword was by the bathroom door. Rowe estimated the value of the missing items at between $2,000 and $2,500.
Appellant was a friend of Rowe’s son. Because appellant was having problems at school, the Rowe family had appellant stay with them four or five months. Rowe explained that she and her family had gone to stay with her mother-in-law two or three days before the break-in. Appellant knew the Rowes were going to Rowe’s mother-in-law’s home. Appellant followed the Rowes to the grandmother’s home, but left shortly afterward.
A week after the burglary, the tires of Rowe’s 1966 Malibu were slashed and the windows of the car were broken. The Malibu was parked in front of her home.
When asked if she told appellant “how long you were going to be gone for, ” Rowe replied, she did not “because – I’m still unclear about that.” No one was left at the Rowe residence when they went to stay with her mother-in-law. Rowe’s son had shown appellant the collectable swords and knives. Appellant never had permission to go into the house without the Rowes being there. The Rowe family moved out the day the electricity was shut off. Shortly thereafter, the water was shut off as well. When asked if her family was going to live with her mother-in-law, Rowe replied: “We were going to stay with her. We were having electricity issues.”
Officer Eric Vasquez investigated the burglary. On February 23, 2009, Vasquez questioned appellant about the burglary. Appellant told Vasquez that he was walking by the Rowe’s home with a friend and decided it was a good idea to steal things from the residence. Appellant was aware the Rowe family was staying at a grandmother’s home. Appellant entered through a kitchen window and exited out the sliding glass door.
Appellant was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and his mother was present during the questioning. Appellant waived his rights and answered Vasquez’s questions.
Appellant and his friend loaded up a backpack with knives. They also took about ten swords. Appellant explained that he committed the burglary because he left a shirt, a PSP, and some games in the house and they had not been returned to him. At the conclusion of the prosecution’s case, defense counsel made a motion to reduce count one to a second degree burglary because there was insufficient evidence the Rowe residence was inhabited. The juvenile court denied the prosecutor’s motion to reopen the case even though Rowe was still present in court to testify.
DISCUSSION
Appellant contends there was insufficient evidence introduced by the prosecution that the burglary he committed was of an occupied or inhabited dwelling. We disagree and will affirm the judgment.
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence ― evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 459 thus states in pertinent part: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building... with intent to commit grand or petit larceny or any felony is guilty of burglary.” Section 460, in turn, divides the offense of burglary into two degrees based upon whether the structure entered was “inhabited.” Section 460, subdivisions (a) and (b), state, in pertinent part: “Every burglary of an inhabited dwelling house, ... or the inhabited portion of any other building, is burglary of the first degree. [¶] (b) All other kinds of burglary are of the second degree.” (§ 460, subds. (a), (b).) Section 459 further defines “inhabited” as “currently being used for dwelling purposes, whether occupied or not.” The terms “‘residence’” and “‘inhabited dwelling house’” have been interpreted to have equivalent meanings. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107.)
In the context of the burglary statute, the word “occupied” means people are actually present in the dwelling. The word “inhabited” means the dwelling is currently being used as a dwelling, whether or not the residence is occupied. Even if the owner is temporarily absent, the dwelling is still inhabited. (People v. Guthrie (1983) 144 Cal.App.3d 832, 839-840.)
The cases interpreting the meaning of “inhabited” focus on a variety of factors to determine whether the dwelling is currently used as a dwelling. In People v. Valdez (1962) 203 Cal.App.2d 559, 563, there was a burglary of an apartment. The previous tenant had vacated the premises and the new tenant had not yet moved in. The court found that neither the old tenant, the landlord, or new tenant were residents of the apartment and the burglary was of the second degree. (Ibid.) In People v. Cardona (1983) 142 Cal.App.3d 481, 483-484, however, a tenant who moved out of an apartment without intent to return and continue living there was found to have left the premises uninhabited, even though some property was left behind for storage purposes and the tenant intended to retrieve it in the future.
In People v. Jackson (1992) 6 Cal.App.4th 1185, 1187-1189 (Jackson), the tenant was found to be a resident of an inhabited dwelling while in the midst of an uncompleted move out of a burglarized apartment. Hotel rooms, though residence in them is usually temporary, still qualify as inhabited dwellings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 317-321 (Villalobos); People v. Fleetwood (1985) 171 Cal.App.3d 982, 986-989.) Habitation is not dependent on the occupant’s intention to use the structure for habitation in the future. If the person uses the structure for habitation when the burglary occurs, his or her possible intent to abandon the habitation in the future does not alter its character as an inhabited dwelling. (Villalobos, supra, 145 Cal.App.4th at p. 320.)
The use of a dwelling as sleeping quarters is not by itself the determinative factor. Instead, it is a circumstance used to determine whether a home is inhabited. (People v. Hughes (2002) 27 Cal.4th 287, 354-355 (Hughes); People v. Hernandez (1992) 9 Cal.App.4th 438, 441-442 (Hernandez).)
The victims in Hernandez were moving from one location to a new apartment. Though the victims had not yet slept at the new location, they had their utilities connected and had moved all of their belongings. This was sufficient evidence for the jury to conclude the victims were occupying the new location. (Id. at p. 442.)
In Hughes, the victim had moved many of her possessions and most of her clothing to her boyfriend’s home and slept at this location for two weeks prior to her death. (Hughes, supra, 27 Cal.4th at p. 354.) Because the victim’s furniture was still at her apartment and the utilities remained on, Hughes found the evidence did not establish that the victim intended the day she died to be the last day she would inhabit her apartment. The court noted it agreed with the People that the victim’s continual presence during the daytime in a dwelling where she kept her personal belongings increased the risk of personal injury and the danger of violent confrontation in the event of a burglary. (Id. at p. 355.)
People v. Aguilar (2010) 181 Cal.App.4th 966 (Aguilar), People v. Meredith (2009) 174 Cal.App.4th 1257 (Meredith), and People v. Marquez (1983) 143 Cal.App.3d 797 (Marquez), analyze the issue of a property owner who is not staying at a residence when a burglary occurs. In Marquez, a case decided by our court, a home was owned by a woman confined to a boarding residence. She had been absent from her home for over two years when it was burglarized. The owner’s conservators regularly entered the residence, and so did a friend, in order to maintain it. Because the home had not been abandoned and the owner had a future intent to return to her home, we held that the home was still an occupied dwelling and affirmed the defendant’s first degree burglary conviction. (Marquez, supra, 143 Cal.App.3d at pp. 799-804.)
In Meredith, the elderly owner of a residence went to the hospital and was later transferred to a skilled nursing facility. The owner asked his accountant and longtime friend to care for his home while he was away. During his treatment at the skilled nursing facility, his residence was burglarized, and the owner thereafter died while on life support. (Meredith, supra, 174 Cal.App.4th at pp. 1259-1261.) The Meredith court rejected arguments by the defendant that there was no evidence the owner intended to return, the owner could not return after being taken off life support, and there was insufficient evidence the dwelling was inhabited. The Meredith court found there was evidence from the owner’s son that the owner wanted things left the way they were because the owner was planning to return. The owner’s intent to return coupled with the absence of evidence that he had moved out or abandoned his intent to return provided substantial evidence supporting the defendant’s conviction for first degree burglary. (Id. at pp. 1268-1269.)
In Aguilar, the victim of a burglary lived in an apartment with his three sons. A fire occurred in a nearby apartment while the victim was at work. When the victim returned from work, he was allowed to remove some personal belongings. Although the victim’s apartment suffered smoke and water damage, his belongings were intact. The victim gathered personal items and clothing for three days and relocated to a hotel. When the victim returned a few days later to recover more belongings, he discovered missing property. (Aguilar, supra, 181 Cal.App.4th at p. 971.)
The court in Aguilar rejected the defendant’s argument that the victim’s apartment was no longer inhabited because it failed to “focus on the point of view of the victim at the time the burglary occurred.” The court noted “there was no evidence the victim had permanently moved out of or abandoned the apartment for dwelling purposes at the time of the burglary.” (Aguilar, supra, 181 Cal.App.4th at p. 971.) The court also noted most of the victim’s belongings were inside the apartment and the victim believed he would return to the apartment when repairs to it were completed. The court found the evidence reasonably supported the jury’s finding that the apartment was inhabited at the time of the burglary. (Id. at pp. 971-972.)
When Rowe was asked if she told appellant when they were returning to the residence, she replied it was “unclear.” Reading this comment with every inference and intendment in support of the judgment, we find Rowe was stating that it was unclear when she would return, not if she would return. When the electricity was shut off, the Rowe family went to stay with a grandmother. We read Rowe’s testimony as expressing a wish to keep and to return to their home when they could pay their utility bills. There was no evidence that the move to the grandmother’s home was permanent or that the Rowe family had abandoned their home. We know for certain that the family left behind valuable sword and knife collections, a cabinet, and an automobile.
Although the Rowe home was without electrical service, it was winter when the Rowes went to stay with the grandmother. Once they were financially able do so, the Rowes could pay their utility bills and again reside full time in their home.
We find this case factually similar to the Meredith and Marquez cases, where the elderly residents no longer lived full time in their residences and had apparent intention to return to them. This case also bears factual similarity to the Aguilar case, where the residents were temporarily living elsewhere while their apartment was being repaired after fire and water damage. We find sufficient evidence that the Rowe residence was occupied and inhabited.
DISPOSITION
The juvenile court’s judgment is affirmed.
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)