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Name: People v. Little
Case #: G045157
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/15/2012

Burglary is first degree even though the residents are away from home while their realtor conducts an open house. Appellant and his codefendant entered a house that was being shown by a realtor and stole property. Appellant argued that during the open house, the home was being used exclusively for commercial purposes, thus there was insufficient evidence of first degree burglary. Affirmed. A house need not have someone present to be inhabited – all that is required is that someone live there. Appellant may be impeached with theft prior where he elicits exculpatory hearsay evidence. Appellant was charged with second degree burglary based on his codefendant’s entry of a Target store and use of the theft victim’s credit card. Appellant’s attorney elicited a statement from a testifying officer regarding appellant’s exculpatory statement that was made during a traffic stop. As a consequence, the court allowed in evidence of appellant’s prior felony conviction for impeachment purposes. (Evid. Code, § 1202.) He challenged admission of his prior because he did not testify. Affirmed. A defendant’s prior felony convictions are admissible under Evidence Code sections 1202 and 788 to attack his credibility when, at his request, his exculpatory statements to police are admitted into evidence but the defendant does not testify. (Citing with approval People v. Jacobs (2000) 78 Cal.App.4th 1444.) Appellant cannot avoid a challenge to his credibility by eliciting exculpatory hearsay evidence without testifying.