## Facts

- Barbara Mattos rented a single-family house on Michigan Avenue in West Sacramento from owner Mersa Noor from 2008 until about April 2011.
- Facing foreclosure on his current residence, Noor gave Mattos notice to vacate, intending to move his family into the Michigan Avenue house after she left.
- By April 30, Mattos had moved out, the utilities were turned off, and the house was entirely empty of the tenant’s property.
- As of May 2, Noor had not obtained keys from the departing tenant, moved in any belongings, or restored utilities, and there was no evidence he or his family had begun living there.
- On May 2, 2011, Penny Lynn Burkett and another person entered the Michigan Avenue house, kicked in a door, and removed copper pipes and other scrap metal/fixtures, causing more than $400 in damage.
- A jury convicted Burkett of first-degree burglary and felony vandalism; the trial court stayed punishment for vandalism under Penal Code section 654, suspended execution of sentence, and granted probation.
- Burkett appealed, disputing only the degree of burglary (first vs. second) and raising claims of error and prosecutorial misconduct.

## Issues

1. Whether substantial evidence supported the finding that the Michigan Avenue house was an “inhabited dwelling house” on the date of entry, as required for first-degree burglary.
2. Whether the trial court erred in denying Burkett’s motion for acquittal as to the first-degree element.
3. Whether the prosecutor committed prejudicial misconduct during opening statement or closing argument.

## Decision

- The court held the evidence was insufficient to prove the house was an “inhabited dwelling” when Burkett entered.
- The court reduced the burglary conviction from first degree to second degree.
- The court vacated the sentence and remanded for resentencing on second-degree burglary.
- The court affirmed the remaining aspects of the judgment, including the vandalism conviction.
- The court rejected the claim that the prosecutor improperly argued facts not in evidence, and treated other misconduct claims tied to “inhabited dwelling” as moot in light of the reduction.

## Legal Principles

- First-degree burglary requires entry into an “inhabited dwelling house”; physical presence at the moment of entry is not required, but the structure must currently be used or treated as a dwelling.
- Habitation ends when the occupant permanently moves out and does not intend to continue or resume using the place as a dwelling.
- A structure may still be “inhabited” while temporarily vacant if a person with a possessory interest presently regards it as a dwelling and objective indicia of habitation exist (e.g., belongings, utilities, ongoing residential use).
- A future intent to occupy, without objective indicia that the property is presently being used or treated as a dwelling, is insufficient to establish an “inhabited dwelling.”
- When evidence supports burglary but not the greater degree, the proper remedy is reduction to the lesser degree and remand for resentencing.

## Conclusion

Because the tenant had permanently vacated and the owner had not yet begun residential use or established objective indicia of habitation, the house was not an “inhabited dwelling” at the time of entry; the burglary conviction was reduced to second degree and the matter remanded for resentencing, with the remainder of the judgment affirmed.


People v. Burkett, 220 Cal. App. 4th 572, 163 Cal. Rptr. 3d 259 (Cal. Ct. App. 2013)