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The People v. Robert Nabayan

May 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT NABAYAN, DEFENDANT AND APPELLANT.



Super. Ct. Nos. SF100067A, SF112397A & SF113432A

The opinion of the court was delivered by: Blease , J.

P. v. Nabayan CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant appeals his jury conviction for first degree burglary (Pen. Code, § 459)*fn1 , claiming instructional error. He contends the trial court erred in giving a modified version of CALCRIM No. 1701 defining "inhabited" and failed to instruct the jury that the house was not inhabited if the owner could not return home. We reject these contentions and affirm.

FACTS

Edna Jackson was about 90 years old and lived in her house on South Sutter Street in Stockton. In March 2009, protective services discovered her caregivers were not giving Jackson her diabetes medicine and were stealing her money. Due to her condition, Jackson went to the hospital for about a week and then was sent to a convalescent home. At the time of trial, Jackson lived at the Golden Living Center. It was stipulated she had not lived at her house on South Sutter Street since March 2009.

When Jackson left for the hospital, she did not pack any belongings. She did not want to leave. While Jackson was away, her friend and pastor, Tom Farmer, checked on her house and had the lawn mowed. He did not continue the utilities, but had the house cleaned.

That August, a string of break-ins at Jackson's house began. After the police had been called four or five times, code enforcement got involved and boarded up the house. The break-ins continued and the house was boarded up two or three times. Each time there was less furniture in the house.

One afternoon in November, there was a rummage sale in Jackson's backyard. The police responded to a burglary call and found two men carrying away a mattress. One of the men told the police defendant had sold him the bed for $15. The police asked defendant what was going on and he replied he worked for a foreclosure company and had been told to clean up the house and sell everything. The property was not in foreclosure and defendant was unable to produce any paperwork. After he was arrested, defendant told the police he did not break in. He claimed the back door was open when he arrived and he was just selling stuff to make money.

Just before trial, Jackson visited her house. She told Farmer she wanted to go home and work in her backyard.

At trial, Jackson claimed she was living in her house and was about 10 years younger than her actual age. She denied she had diabetes and did not know why she was in a wheelchair. She knew who Farmer was and that she had given him power of attorney. She had not given anyone permission to sell her property or to live or sleep in her house.

Jackson testified she had not decided what to do with the house, which was in very bad shape. She testified a lot of things were missing, but perhaps it was her intention to return. She was not saying yes or no because she had not yet made that decision. She denied she had spoken to Farmer about selling the house; she did not like to talk about it.

Farmer testified the house would remain as is until Jackson told him otherwise. He admitted Jackson was not always coherent and could not live by herself. Farmer said Jackson wanted to work in her backyard and never said she did not want to return home. She had told him to do what is best, but never said she did not want to return home. He denied his testimony at the preliminary hearing that ...


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