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The People v. Robert Nabayan


May 27, 2011


Super. Ct. Nos. SF100067A, SF112397A & SF113432A

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

P. v. Nabayan CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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 Jackson said she did not think she would return home and the mortgage company could take the house back.

In closing argument, the People admitted Jackson would not return home.

A jury convicted defendant of first degree burglary (§ 459) and he admitted he had served a prior prison term (§ 667.5, subd. (b)). Defendant's conviction resulted in a violation of probation in two prior cases, in which defendant had pled guilty to grand theft (§ 487) and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). He was sentenced to an aggregate term of five years in prison.


I The primary issue at trial was whether Jackson's house was inhabited at the time of the alleged burglary. The defense position was that the house was not inhabited because Jackson was not living there and was unable to return home.

A person is guilty of burglary if he "enters any house . . . or other building . . . with intent to commit grand or petit larceny or any felony . . . ." (§ 459.) "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." (§ 460, subd. (a).) "All other kinds of burglary are of the second degree." (§ 460, subd. (b).)

For purposes of first degree burglary, "inhabited" means "currently being used for dwelling purposes, whether occupied or not." (§ 459.) The term has been interpreted broadly to achieve the legislative purpose of providing increased protection for one's home. (People v. Aguilar (2010) 181 Cal.App.4th 966, 970.) The issue of habitability under section 459 is determined from the viewpoint of the person with the possessory right to the dwelling. (Ibid.) To determine if the house is inhabited, "we look to the intent of the occupier . . . ." (People v. Marquez (1983) 143 Cal.App.3d 797, 801.) A house becomes uninhabited only where "the residents have moved out without the intent to return . . . ." (People v. Cardona (1983) 142 Cal.App.3d 481, 483.) "The dispositive element is whether the person with the possessory right to the house views the house as his dwelling." (Id. at p. 484.) If the house is used as a dwelling when the burglary occurs, the possible intent to abandon it in the future does not alter its character as an inhabited dwelling. (People v. Villalobos (2006) 145 Cal.App.4th 310, 320.)

The trial court instructed the jury on the degrees of burglary and the concept of an inhabited dwelling by giving a modified version of CALCRIM No. 1701 and an additional instruction, shown post in italics. The court instructed the jury as follows:

"And again, burglary is divided into two degrees. You will be asked to decide which one. If you conclude that the defendant committed a burglary, then you have to decide which one. First degree burglary is the burglary of an inhabited house dwelling.

"Okay. A house is inhabited if someone uses it as a dwelling whether or not someone is inside at the time of the alleged entry. A house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.

"A house includes, of course, any structure, like a garage that is attached to the house and functionally connected with it.

"To determine whether or not the house is inhabited, you must look at Ms. Jackson's purpose for the house in this case such as, number one, did she view the house as her dwelling place on the date of the alleged crime? Two, did she intend to return to her house to live again on the date of the crime? Whether or not a house is inhabited does not change because the occupants or residents of the house are away for an extended period of time.

"The subjective impressions of the defendant as to whether the house is inhabited or uninhabited at the time is not irrelevant -- wait -- is not relevant, rather, and not to be considered in deciding whether or not the house is inhabited or uninhabited.

"All other burglaries, in other words, burglary of not of an inhabited house are burglaries of the second degree. And the People, of course, have the burden of proving beyond a reasonable doubt again that the burglary was first degree. If the People have not met this burden, you must find the defendant not guilty of first degree burglary."

Defendant contends the trial court erred in giving, over defense objection, the additional instruction. Specifically, he contends the instruction was misleading and confusing because it allowed the jury to find Jackson's house was inhabited if it answered in the affirmative either of the two questions posed by the court. Defendant finds no fault with the jury considering whether Jackson intended to return to her house, conceding that is the law under People v. Cardona, supra, 142 Cal.App.3d at page 484. He contends, however, that the second question was worded so broadly as to permit the jury to find the house inhabited if it was ordinarily used for dwelling purposes. In other words, defendant asserts, the jury could find the house inhabited simply if Jackson believed she owned a house ordinarily used as a dwelling.

We disagree with defendant's reading of the instruction. The two questions posed by the additional instruction, introduced by "such as," were only suggestions for determining Jackson's purpose. They properly focused on her intent to return to the house and whether she considered the house her home. The first question asked if Jackson "view[ed] the house as her dwelling place on the date of the alleged crime?" Nothing in this instruction permitted the jury to find the house was inhabited just because it was a house and ordinarily used as a dwelling. The jury was instructed it had to find Jackson considered the house her home and intended to return to live there in order to find an inhabited dwelling.

The trial court did not err in giving the additional instruction.

II Defendant contends the trial court erred in failing to instruct that if Jackson could not return home, then her house was not inhabited regardless of her intent. Defendant asserts there was substantial evidence that due to health problems and loss of her mental faculties, Jackson would never be able to return to her home. Indeed, the prosecutor conceded as much in closing argument.

Defendant recognizes that trial counsel failed to request an instruction on Jackson's inability to return home. He contends, however, that such a request would have been futile because the trial court had already ruled that the issue was Jackson's intent no matter how unrealistic that intent might be.

The primary problem with defendant's contention is not that he failed to request the instruction he now wants, but that such instruction does not accurately state the law. The issue of whether an empty house is an inhabited dwelling is determined by the owner's intent, whether she intends to return or whether she has abandoned the house. (People v. Cardona, supra, 142 Cal.App.3d at p. 483.) The practicality of that intent is not at issue.*fn2

In People v. Marquez, supra, 143 Cal.App.3d 797, a house was found to be inhabited although the resident was under a conservatorship and had moved to a boarding house as much as two and half years earlier and there was a doubt she would return. The house was still maintained as a residence and there was no evidence the resident, or her conservators on her behalf, had vacated or abandoned the house to live somewhere else. (Id. at pp. 800, 802.)

In People v. Meredith (2009) 174 Cal.App.4th 1257, before Olsen went to the hospital suffering from dementia and age-related physical problems, he asked a friend to take care of his house. He wanted things kept as they were as he was planning on coming back. The next month he was moved to a skilled nursing facility and two months later, the day before the burglary, he may have been taken off life support. (Id. at p. 1260.) This court found Olsen used the house as a dwelling despite his three-month absence because he expressed no intent to abandon the house, but gave express directions to maintain it for his return. (Id. at p. 1268.) The evidence concerning life support was inconclusive, but even if it had been clearly proved and thus most unlikely the resident would return, "this would not show as a matter of law, that Olsen's home immediately lost its character as a residence . . . ." (Ibid.)

In People v. Aguilar, supra, 181 Cal.App.4th at pp. 971-972, an apartment that was burglarized after a very destructive fire was found to be inhabited because the resident had left his belongings there and intended to return, even though after the burglary he learned he would have to move due to the extent of the structural damage.

These cases establish that the resident's intent controls in determining whether a dwelling is inhabited, regardless of whether that intent is realistic or can actually be carried out. Defendant attempts to distinguish Marquez and Meredith on the basis that in neither case was it established, or conceded by the prosecution, that the resident would never return home. We are not persuaded. In both cases it was as unlikely as here that the elderly and infirm homeowners would ever return to live in their houses. Further, in Meredith, this court noted that the analysis would not change if the evidence had clearly shown Olsen had been taken off life support before the burglary and thus was unlikely to return. (People v. Meredith, supra, 174 Cal.App.4th at p. 1268.)


The judgment is affirmed.

We concur: RAYE, P. J. BUTZ,J.

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