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Name: People v. Burkett
Case #: C070257
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/15/2013

There was insufficient evidence that a house was “inhabited” for purposes of the burglary statute where homeowner had only declared his intent to occupy the house in the future and no other indicia of habitation were present. A homeowner facing foreclosure of his residence gave the tenant living in his other home a notice to vacate so that he could move back in. By April 30, the tenant had moved out and turned off the utilities. On May 2, appellant burglarized the home. At that time, the homeowner did not have keys to the house, had not moved in any personal belongings, and had not yet turned on the utilities. Appellant was convicted of first degree burglary. On appeal, appellant argued insufficient evidence established that the home was “inhabited” at the time of her entry, as is required for first degree burglary under Penal Code section 460. The Court of Appeal agreed, reducing the conviction to second degree burglary. Habitation ends when the occupant permanently moves out and does not intend to continue or resume using the home as a dwelling. A home may be inhabited even if it is not occupied if a person with a possessory interest in the home views it as his or her dwelling and other indicia of habitation are present. Here, although the homeowner had previously lived in the burglarized house before renting it to another person, he permanently left when he purchased and moved into his second house that was eventually foreclosed. There was no evidence that he was merely away from the first house temporarily. While the homeowner had declared that he was going to move back into his first house, there were no other indicia of habitation present when the house was burglarized. It was not enough to show that the home was suited for use as a residence or that it had been recently used or would be imminently used.