People v. Cardona - 142 Cal. App. 3d 481, 191 Cal. Rptr. 109 (1983)

Rule:

A burglary is of the first degree only if it is of an inhabited dwelling house during the nighttime. Cal. Penal Code § 459 defines "inhabited" as it is used in Cal. Penal Code § 460 as meaning currently being used for dwelling purposes, whether occupied or not.

Facts:

Appellant Antonio Romero Cardona broke into the victims' home with the intent to steal. He was caught by victims, arrested, and convicted of first-degree burglary. He appealed his conviction, contending that he was only guilty of second-degree burglary because the house was uninhabited at the time he broke into it, as the victims had moved out of the house and had only had returned to it to pick up their belongings.

Issue:

Under the circumstances, could the appellant be held guilty of first-degree burglary? 

Answer:

No.

Conclusion:

On appeal, the court noted that first-degree burglary was a crime against habitation and not against property. Because the victims no longer viewed the house as their dwelling, the court held that it was not inhabited when the burglary occurred. Accordingly, the court modified the judgment to find appellant guilty of second-degree burglary and affirmed the modified judgment.