Orange County Criminal Defense Lawyer Blog
A man walked down the narrow street. He saw a house being remodeled. There was no furniture in the house but there was obviously work being done on it. A “porta potty” was outside the house for the workmen to use. Lots of tools were in the garage; portable belt sander, air compressor, and a nail gun along with other items that could easily be sold. Temptation got the better of him. The man walked into the vacant house through an open unlocked door, where there were no plates, dishes, furniture, or anything else that would look like the house was inhabited.
The man stole the tools with the intent to sell them. While he was in the house the workmen came back and chased him away. Unfortunately for him he was arrested nearby still in possession of the stolen property. He was charged with burglary of an inhabited house and the enhancement that someone was home when the burglary occurred.
How could an obviously uninhabited house qualify as an inhabited dwelling house and just because the workmen come back why is the burglary all of a sudden a violent felony?
The answer is that as long as the house was intended to be lived in, no matter that it was empty and couldn’t have been lived in due to the remodeling, it qualifies under the burglary statutes (Penal Code Section 459). As for the workmen, how do they qualify the same as homeowners being present when the burglary occurred? Surprisingly, the workmen do qualify as “non-accomplices” present during the burglary and the man can be convicted of burglarizing a residence while the occupants are present qualifying as a violent strike felony and unless there are unusual circumstances the man must be sent to prison!
No doubt the man thought he was “just” stealing a few tools but the holding of People v Munglia decided December 29, 2016 (F070141) clearly sets out that what he did qualifies as both a strike and violent felony.