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Name: People v. Munguia
Case #: F070141
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/29/2016

Occupied burglary enhancement applies where homeowner was not present when the perpetrators entered his residence, but returned while the burglary was in progress. Homeowner Tejeda was not home when codefendants Munguia, Arambula, and Ribiero entered his residence. Munguia and Ribiero departed, but Tejeda returned and entered the residence while Arambula was still inside. Munguia and Arambula were convicted of first degree burglary and a violent felony/occupied burglary enhancement allegation (Pen. Code, § 667.5, subd. (c)(21)) was found true based on Tejeda’s presence in the residence. On appeal, defendants challenged the sufficiency of the evidence to support the enhancement. Held: Affirmed. Under section 667.5, subdivision (c)(21), first degree burglary is elevated to a violent felony where a person other than an accomplice is present in the residence “during the commission of the burglary.” The occupied burglary enhancement does not require that the nonaccomplice be present at the time of entry. Rather, the enhancement applies if a nonaccomplice is present at any time prior to the perpetrator’s final departure from the residence. This is because the offense of burglary does not end upon entry to a residence but continues until the perpetrator makes his final exit from the structure. (See People v. Montoya (1994) 7 Cal. 4th 1027.) In either situation, an increased risk of danger to the occupant’s personal safety exists. In this case, Tejeda interrupted a burglary in progress when he entered the house before Arambula departed. There was also evidence that Munguia had not departed the residence for the final time before Tejeda arrived because he came back to the house while Tejeda was present to pick up Arambula. Thus, Tejeda was “present during the commission of a burglary” and the occupied burglary enhancement was supported by sufficient evidence.