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Name: People v. Meredith
Case #: C057232
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/15/2009

CALCRIM No. 1701, defining the crime of burglary, requires no modification as it includes an adequate definition of whether the structure was inhabited, a necessary element for first degree burglary. The 93-year-old owner and resident of a Sacramento house was hospitalized in September 2006, suffering from dementia and age-related physical problems, and was then transferred to a convalescent hospital in October 2006. He left his belongings in the house and instructed his friend and accountant to take care of the house as he intended to return. The accountant provided for maintenance of the house and checked on the house periodically. On December 27, 2006, the accountant went to the house and observed appellant and another man coming out of the garage. Appellant was arrested and found to be in possession of a signed traveler’s check and a pen which belonged to the home owner. It was subsequently discovered that the house had been entered and ransacked and a significant amount of property taken. But, it was not known when the residence was entered. On December 31, 2008, the owner died, without ever having returned to his house following his September 2006 hospitalization. At trial, appellant’s request for modification of CALCRIM No. 1701, inserting the word “currently” into the definition of the instruction so as to state, “A house is inhabited if someone currently uses it as a dwelling ….,” was denied. The appellate court upheld the denial, noting that for purposes of first degree burglary, a dwelling need not be currently occupied, and in determining whether it is occupied for purposes of the crime, California law looks to the intent of the occupant insofar as whether he/she intends to return, and not the length of absence. (People v. Marquez (1983) 143 Cal.App.3d 797.) Here, as there was no doubt that the owner intended to return to his house, regardless of his ability to do so, for purposes of the law, the dwelling was inhabited. Requiring a defendant to appear for jury trial in jail clothing is a violation of the constitutional right to a fair trial, but is not reversible per se. Prior to trial defense counsel advised the court that because of defendant’s large size, he had not yet been able to secure civilian clothing and requested a delay until clothing had been obtained. The court denied the request and appellant was required to wear orange jail clothing throughout the trial. The appellate court agreed that compelling a defendant to go to trial wearing jail clothing violates his constitutional right to a fair trial, due process, and equal protection. However, the error is not reversible per se. And here, the error was harmless beyond a reasonable doubt because appellant’s credibility was not at issue since he did not testify and made no pre-trial statements; there were no significant evidentiary disputes; there was no highlighting by the prosecution that the orange jumpsuit was jail clothing; and the jury was instructed to form no bias against appellant because of the clothing.