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Name: People v. Aguilar
Case #: E047830
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/03/2010

Habitability for purposes of the burglary statute is determined through the eyes of the person with the possessory right to the dwelling. A fire caused damage to an apartment building, and the tenants were relocated to a hotel. A few days after the fire, a tenant was escorted to his apartment to retrieve some belongings. Upon entry, the tenant found appellant inside drinking his wine and wearing his shoes. And the tenant’s messenger bag had been packed with other items belonging to him. A contested issue at the first-degree burglary trial was whether the apartment was “inhabited.” The court excluded appellant’s proffered evidence from a building inspector who would have testified the apartment was now uninhabitable. Appellant made a sufficiency of evidence claim, alleging the dwelling was not inhabited. The appellate court agreed with the trial court that the question of whether a dwelling is inhabited is viewed through the eyes of the victim. Here, the tenant had not permanently moved out or abandoned his apartment. Most of his belongings were still inside, and he testified he believed he would be returning to the apartment once it was repaired. The court also noted that under the “disaster provision” found in section 459, the apartment would still qualify as inhabited. That clause says the space is still considered used for dwelling purposes if at the time of the burglary it is unoccupied only “because a natural or other disaster caused the occupants to leave the premises.” Further, because the question of habitability is seen through the eyes of the occupant, the testimony of the building inspector was properly excluded as irrelevant. At the time of the burglary, the victim did not know he would have to move out for good. He learned of this fact several days later.