People v. Vasquez: Addresses When a Dwelling is Inhabited Under California Burglary Statute

In People v. Vasquez (2015), __Cal.App.4th_, decided on September 17, 2015, Case No. B255131, appellant argued there was insufficient evidence to support a jury’s finding that he had committed a first degree burglary because there was insufficient evidence to support an essential element of first degree burglary - the residence was an inhabited dwelling at the time of the burglary.  

But the appellate court rejected this argument, finding that these facts were sufficient to establish that the house was an inhabited dwelling for purposes of first degree burglary in California: ”The new owner of a house prepares to move in. She transfers utilities to her name, installs locks, leaves personal items in the house, paints an interior wall of the garage, and comes and goes during daytime hours narrowly missing defendant's two intrusions.”  

Section 460, subdivision (a) provides: "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." Section 459 provides: "'[Inhabited' means currently being used for dwelling purposes, whether occupied or not." The use of a house as sleeping quarters is not determinative; it is but one circumstance in deciding whether a house is inhabited. (People v. Hughes (2002) 27 Cal.4th 287, 354; id. at p. 355 [the "inhabited-uninhabited dichotomy" turns on the character of the use of a building, not the presence or absence of a person].) 

The appellate court further explained that Banks testified that she inhabits the property. She introduced herself to a neighbor, transferred the utilities to her personal accounts, notified creditors of her new address, and began painting and renovating the home. She added window locks and left tools and personal belongings, including several chairs and snacks, inside the home. Aside from her temporarily sleeping at a girlfriend's apartment, Banks was
generally in or around the premises of her new home. (People v. Hansen (1994) 9
Cal.4th 300, 310, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172,
1199 [an inhabited dwelling is one in which persons reside and where occupants are
generally in or around the premises]; People v. Hernandez (1992) 9 Cal.App.4th 438,
440-442 [first degree burglary conviction upheld where victims had just moved into the
apartment and had not yet unpacked belongings or slept in apartment].) This increased
the danger of personal injury and the risk of "'a violent confrontation during a burglary.'"
(People v. Hughes, supra, 27 Cal.4th 287, 355.) 

The reason why this was such an important argument, even though it lost  is because first degree burglary is a strike under California's Three Strike Law, whereas, second degree burglary is not a strike and carries lesser penalties.  Had the appellant prevailed, his conviction  would have been reduced to a second degree burglary. This would have lessened the prison time appellant would have to serve as well.   

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