Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. (Super. Ct. No. 10HF1106)
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
Defendant Rodney Lepere Little was convicted of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)), and fraudulently using an access card (Pen. Code, § 484g). The jury found true the allegation that one who was not Little's accomplice was present in the residence during the commission of the residential burglary (Pen. Code, § 667.5, subd. (c)(21)). Little was sentenced to a total of 21 years four months in state prison. He appeals.
We reject Little's claims of error with respect to the nature of the crime, probable cause, the use of a prior felony conviction for impeachment purposes, and ineffective assistance of counsel. We hold that, for the purposes of Penal Code sections 459 and 460, a residence does not become an uninhabited dwelling just because the owners thereof leave the premises while a realtor conducts an open house on their behalves. We also express our view that People v. Jacobs (2000) 78 Cal.App.4th 1444, concerning the use of prior felony conviction evidence to impeach a non-testifying defendant's credibility, is well reasoned and should be applied to the facts of this case.
On June 27, 2010, realtor Janice Konkol was holding an open house at a residence in Irvine. Little and companion Nakeyia Shipman entered the property. They split up once inside and Konkol was speaking with Shipman while Little was out of sight for at least five minutes. After Little and Shipman left the house, Konkol realized that her wallet, containing credit cards, a Nordstrom's gift card and a winning lottery ticket, was missing from her purse. She looked around the property and inside her car for the wallet, and contacted her roommate to see if by any chance she had left the wallet at home. Having been unable to locate the wallet, Konkol called the police.
Police Sergeant Michael Hallinan was out in the field when he heard a police radio dispatch concerning the theft of the wallet. He spotted a pickup truck matching the one described in the dispatch and containing two people matching those described in the dispatch. He made a traffic stop, searched the vehicle and found Konkol's credit cards in between the seats.
A police officer transported Konkol to the intersection in Irvine where Little and Shipman had been detained. Konkol made a field identification of each of Little and Shipman at that time.
Little was convicted of first degree residential burglary, second degree commercial burglary, and fraudulently using an access card. He appeals.
Little argues: (1) the burglary was not a first degree burglary, as a matter of law; (2) the search of the truck was made without probable cause: (3) it was an abuse of discretion to admit his prior theft conviction; and (4) he did not receive effective assistance of counsel. We shall address these contentions in turn.
B. First Degree Burglary:
Penal Code section 460, subdivision (a) provides: "Every burglary of an inhabited dwelling house, . . . or the inhabited portion of any other building, is burglary of the first degree." Penal Code section 459 states in pertinent part: "As used in this chapter, 'inhabited' means currently being used for dwelling purposes, whether occupied or not."
Little contends that while the open house was being held by the real estate agent, the home was not "currently being used for dwelling purposes" within the meaning of Penal Code section 459. Rather, he says, during the open house, the home was being used for exclusively commercial purposes. Consequently, he contends, he cannot have committed first degree burglary within the meaning of Penal Code section 460, subdivision (a).
Little cites People v. Rodriguez (2004) 122 Cal.App.4th 121, which provides: "Burglary of a structure that is not an 'inhabited dwelling house' is burglary of the second degree [citation] . . . . 'Burglary of business premises, even though such premises might have people on them, is not burglary of the first degree because it does not carry the peculiar risks of violence and resulting injury which inhere in the burglary of a home. [Citation.] . . .' [Citation.]" (Id. at pp. 132-133.)
However, Little cites no case for the proposition that when a homeowner invites a real estate agent or other person into the home to conduct some business on his or her behalf, the property is converted from an "inhabited dwelling house" into business premises. Whether at the crucial moment the homeowner is at home, on the one hand, or is using the home for business-related purposes, on the other hand, is not determinative.
"'For purposes of the California first degree burglary statute, a structure "need not be occupied at the time; it is inhabited if someone lives there, even though the person is temporarily absent." [Citations.] A structure that was once used for dwelling purposes is no longer inhabited when its occupants permanently cease using it as living quarters, and no other person is using it as living quarters. [Citations.]' [Citation.]" (People v. Meredith (2009) 174 Cal.App.4th 1257, 1266.) Here, there is no dispute that the owners of the home still lived there, even though they were temporarily absent from the home at the time Little entered. Therefore, the home was "inhabited" during the period of the open house.
"[W]e look to the intent of the occupier or person entitled to occupy the dwelling to determine if it is inhabited within the meaning of Penal Code section 459." (People v. Marquez (1983) 143 Cal.App.3d 797, 801.) "'[A]fter a man has established a house as his dwelling it retains this character so long as he intends it to be his place of habitation even though he and his entire household are away . . . .' [Citation.]" (Id. at pp. 801-802.) "'It has never been held that a person loses his residence by reason of a brief absence from the house where he lives, and without evidence of an intention to depart therefrom and go live in some other place.'" (Id. at p. 802, fn. omitted.)
Little cites only one case, People v. Lewis (1969) 274 Cal.App.2d 912, wherein the property in question was being used for commercial purposes. In that case, the perpetrators were hiding in a supermarket at closing time, and engaged in a fight with the security guard inside the store. (Id. at pp. 914-915.) The Attorney General argued that, inasmuch as employees were on the premises at the time, the supermarket was an inhabited building within the meaning of Penal Code section 460. (Id. at p. 916.) The court rejected that argument, holding that there was "no evidence that the building was occupied as a dwelling, or living quarters." (Id. at pp. 921-922.)
The fact that a supermarket was held not to be an inhabited building despite the fact that employees were inside the building when the activity in question took place does not mean that the residence in question in the matter before us was not an "inhabited dwelling" within the meaning of the statute. In People v. Lewis, supra, 274 Cal.App.2d 912, a supermarket was at issue. Just because people were on the premises, it did not make a supermarket an "inhabited" building. Here, simply because a real estate agent was on the premises, that did not turn the residence into an uninhabited commercial property. The residence was still a residence and the homeowners continued to own it. There is no suggestion that the homeowners in this case had abandoned their home with no intention of returning. They were just temporarily absent at the time Little was there. They still inhabited the residence within the meaning of the statute. (People v. Marquez, supra, 143 Cal.App.3d at pp. 801-802.)
The Attorney General puts it well: "Finally, [Little's] position, if adopted, would lead to unintended consequences. For instance, if a person worked out of his home, the home would be a 'business' when the person was working, but a 'residence' when the person was taking a break. Or, a property would lose its residential character every time the maid or gardener was there to work, as long as the homeowner was away." Certainly, this cannot be the case.
C. Probable Cause for ...