The opinion
Filed 2/25/21 In re M.U. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.U., a Person Coming Under B302971
the Juvenile Court Law.
______________________________ (Los Angeles County
THE PEOPLE, Super. Ct. No. YJ39345)
Plaintiff and Respondent,
v.
M.U.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Morton Rochman, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Toni R. Johns
Estaville, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
INTRODUCTION
The juvenile court sustained a petition under Welfare and
Institutions Code section 602, finding true that M.U. committed
first degree residential burglary and possession of a firearm by a
felon.
M.U. makes two arguments on appeal. First, he contends
the first degree burglary conviction must be modified to second
degree because there is no substantial evidence that the
residence in question was inhabited at the time of the burglary.
Second, he contends there is insufficient evidence he was a felon
in possession of a firearm because he had never suffered a prior
felony conviction.
We agree with M.U.’s second contention, and reverse the
adjudication order as to that count only. In light of this, we
remand the case to juvenile court with directions to recalculate
the maximum term of physical confinement and amend its
dispositional order accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to M.U.’s appeal are brief and
undisputed.
At about 12:30 p.m. on June 18, 2019, Lance Grandison
noticed four persons in a Black Hyundai Sonata drive up to his
neighbor’s house, stay a few minutes, and then drive off. His
neighbor is Clarence Brown, a 95-year-old World War II veteran
who had lived in the neighborhood for a long time, but was not in
the house at the time.
About 10 minutes later, Lance noticed the same vehicle
return. Lance and his wife Maria observed three young males
step out of the car, approach the side of Clarence Brown’s house,
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look through the kitchen window, and proceed toward Brown’s
backyard. Lance and Maria next heard glass breaking. Maria
called 911.
About 20 to 30 minutes later, Lance and Maria observed
the three males come out of the front door and run toward the
street, each holding firearms. Lance confronted them and took
photographs of them as they ran to their car; he also took
photographs of their car as they drove off. Maria called 911 once
more and reported the license plate number of the black Sonata.
At approximately 1:15 p.m. that afternoon, an officer and
detective with the Long Beach Police Department observed the
black Sonata with the reported license plate number arrive and
park in the driveway of a residence on West 57th Street. Minor
I.H. was observed exiting the vehicle’s driver side; he carried
several rifle bags from the car to the house; he returned a minute
later and grabbed more bags out of the car and went back toward
the house. I.H. then returned to the black Sonata and drove
away.
The black Sonata returned 20 minutes later. I.H. and
16-year-old appellant M.U. were observed exiting the car; they
walked over to a blue Impala parked on the same street, and sat
in the car. They were detained and arrested shortly thereafter.
The arresting officers found a black rubber glove labeled “Gorilla
Grip” in M.U.’s pocket and a “center punch” (a tool used to
shatter glass quietly) on I.H.
The officer searched the exterior of the property and
recovered what appeared to be the same firearm and firearm
bags I.H. was observed carrying toward the house; they were
hidden in a crawlspace underneath the house. A bolt-action rifle
in a dark round bag was also recovered.
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Clarence Brown’s daughter Cynthia Herbert was contacted
by telephone and arrived at her father’s home to find “everything
in such disarray and discovered the break-in [and] the burglary.”
The French doors in the rear were broken down, the alarm
system was shattered, drawers and cabinets were overturned.
Cynthia identified personal items belonging to her father that
were missing—a ring, a watch, and three or four guns (including
a handgun, a shotgun, and a rifle). Cynthia was later called to
identify the recovered property; she identified one of her father’s
guns.
On June 21, 2019, the People filed a petition alleging M.U.,
a minor, committed one count of first degree residential burglary
in violation of Penal Code1 section 459 (count 1), and one count of
possession of a firearm by a felon in violation of section 29800,
subdivision (a)(1) (count 2).
In support of count 2, the district attorney provided the
court with a certified minute order dated December 17, 2018, for
Los Angeles Superior Court case No. YJ39345, adjudicating M.U.
guilty of grand theft (a felony) in violation of section 487,
subdivision (c), as alleged in a petition filed September 14, 2017.
During the proceedings, the following relevant testimony
was elicited.
Lance testified he knew Clarence Brown was not at his
house at the time of the incident.
Lance’s wife Maria testified no one was living at the
neighbor’s house on June 18, 2019—the day of the incident.
Maria further testified Clarence Brown lived alone at the house,
but “ha[d]n’t been in the home for a little while” since he “went
1 All further undesignated statutory references are to the
Penal Code.
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into the V.A. home”; she did not know when he had gone to the
Veterans Administration (V.A.) home.
Cynthia testified she lived at her father’s property “most of
[her] life until [she] became an adult.” She stated the “home is
[her] property now. It belonged to [her] father” but she obtained
power of attorney and now takes care of the house. She
sporadically returned to the house, “usually at least once a
month, sometimes more often than that.” Prior to the June 18,
2019 incident, Cynthia had last gone to the house just six days
prior—on June 12th. The home is completely furnished; there is
running water and all the utilities are on (she “never turned
anything off”). She has her gardener there “at least once a week”
to clean the front yard and lawn. Cynthia testified her niece
stayed at the house and lived there for a while.
After a contested adjudication, on November 12, 2019, the
juvenile court sustained the petition, found M.U. guilty of both
counts, and declared M.U. a person described by Welfare and
Institutions Code section 602.
During the November 14, 2019 dispositional hearing, the
court ordered the “[c]ustody of minor . . . taken from the parents”
and “placed in the care, custody and control of the Probation
Officer.” The court ordered M.U. placed in the camp community
placement program for a five to seven-month term—the
“maximum confinement time.”
M.U. filed a timely notice of appeal.
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DISCUSSION
A. Substantial Evidence Supports the First Degree Burglary
Conviction in that the Residence was an Inhabited Dwelling
M.U. challenges the sufficiency of the evidence to support
his conviction for first degree burglary because he contends the
evidence shows “the premises in question were not an inhabited
dwelling house” within the meaning of section 459 at the time of
the burglary. He argues the evidence shows “unequivocally that
no one had lived at the house” and that it was “not occupied” on
the date of the incident. He concludes adjudication should have
been limited to burglary in the second degree, not first.
“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light
most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find [M.U.] guilty beyond a reasonable doubt.” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.) We will reverse only if “ ‘it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ the [judgment].” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
Because M.U. challenges the sufficiency of the evidence
concerning only the “inhabited dwelling” element of first degree
burglary, the scope of our review is similarly limited.
Section 459 provides that a person is guilty of burglary if he
“enters any house, room, apartment, . . . or other building . . .
with intent to commit grand or petit larceny or any felony.”
(§ 459.) Burglary of an inhabited dwelling house is burglary of
the first degree; all other kinds of burglary are of the second
degree. (§ 460, subds. (a) & (b).) Section 459 defines “inhabited”
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as “currently being used for dwelling purposes, whether occupied
or not.”
M.U. argues the evidence shows neither Clarence Brown
nor his daughter Cynthia inhabited or occupied the house on the
date of the burglary—June 18, 2019. He contends the evidence
shows Brown had “moved into” the V.A. home prior to the
burglary date and was no longer living there. He refers to
testimony by Maria (the neighbor) who stated no one was living
at Brown’s house on that date. Maria had further testified that
Clarence Brown lived alone at the house, but “ha[d]n’t been in
the home for a little while” since he “went into the V.A. home.”
M.U. posits that even if Clarence Brown “retained any
possessory rights to the house . . . , which is unclear, there was no
suggestion the 95 year old intended ever to live there again.” He
compares Cynthia and her father Clarence to the son and elderly
father in People v. Meredith (2009) 174 Cal.App.4th 1257, 1260,
where the elderly father—suffering from dementia and age-
related physical problems—was transferred to a nursing facility.
The son stated his father “was ‘adamant that all of his things
stayed just the way they are’ because ‘he was planning on coming
back.’ ” (Ibid.) M.U. argued there was no evidence in the case
before us to suggest Clarence Brown would return to inhabit the
property for dwelling purposes.
M.U. next argues the house was also neither inhabited by
nor used for dwelling purposes by Cynthia. He referred to
Cynthia’s testimony that the home “belonged to [her] father” but
is her property now. She obtained power of attorney and now
“took care of” the house. While she checked the house
“sporadically” and maintained the house, its furniture and
utilities, and paid for weekly service by her gardener, M.U.
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contends “the test is not whether there is furniture or possessions
in the house but whether the person with the possessory right
intends to occupy it.” M.U. argues the evidence does not show
Cynthia had any intention of occupying the house.
Respondent disagrees and argues Clarence Brown’s home
retains its character as an inhabited dwelling, despite the fact it
was unoccupied on the date of the incident. Respondent
compares the facts of this case to People v. Marquez (1983)
143 Cal.App.3d 797 (Marquez). In Marquez, the burglary took
place in a house “[n]o one was living in.” (Id. at p. 799.) The
house was owned by a woman (Emma) in a conservatorship who
was “confined to a boarding residence.” (Ibid.) She had not lived
in the house for at least a year or two. (Id. at pp. 799–800.) Her
friend took care of the house. (Id. at p. 800.) The reviewing court
in Marquez aptly framed the issue as “whether a dwelling can be
considered ‘inhabited’ where the resident has moved to a
boarding home, has had a conservatorship appointed over her,
the house is being maintained, and there is a doubt she will
return.” (Id. at p. 801, italics added.) We agree with respondent
that this case controls, based on the similarity of its facts to the
case before us.
The Marquez court held we must look to the intent of the
occupier or person entitled to occupy the dwelling to determine if
it is inhabited within the meaning of section 459. (Marquez,
supra, 143 Cal.App.3d at p. 801.) To that end, the court provided:
“ ‘[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.’ ”
(Id. at pp. 801–802.)
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The court of appeal in Marquez noted section 459 includes a
definition of “inhabited”: “ ‘As used in this chapter, “inhabited”
means currently being used for dwelling purposes, whether
occupied or not.’ ” (Marquez, supra, 143 Cal.App.3d at p. 801.)
It also noted that a dwelling house is inhabited even though the
occupant is temporarily absent. The inhabited-uninhabited
dichotomy turns not on the immediate presence or absence of
some person but rather on the character of the use of the
building. It is the present use rather than the past or future
intended use which is determinative. (Ibid.)
In Marquez, there was no evidence in the record that
Emma, or conservators acting on her behalf, ever vacated or
abandoned her residence to live in some other place. (Marquez,
supra, 143 Cal.App.3d at p. 802.) Because there was no evidence
of abandonment, the court inferred Emma intended to return,
even though it was doubtful that she would. “It is the intent and
not the length of absence which controls.” (Ibid.) Despite
Emma’s absence, the building retained its character and use as
an inhabited dwelling.
Just as Emma resided at a boarding residence but had her
friend maintain and check on her house, Clarence Brown stayed
at a V.A. home, but had his daughter Cynthia check on the house
at least once a month, maintain his furniture and belongings,
ensure the utilities functioned, and arrange for weekly care of the
front yard by a gardener. The house retained its character and
use as an inhabited dwelling. While M.U. argues “there was no
suggestion the 95 year old intended ever to live there again,” the
court of appeal in Marquez noted the same regarding Emma,
commenting that “there is a doubt she will return” from the
boarding home. (Marquez, supra, 143 Cal.App.3d at p. 801.)
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Based on the record, we conclude substantial evidence
supports M.U.’s first degree burglary of an inhabited dwelling
house within the meaning of section 459.
B. There is No Evidence M.U. was a Felon in Possession of
Firearm as He Has Not Sustained a Prior Felony
Conviction.
Next, M.U. argues there is insufficient evidence he was in
possession of a firearm because he has never suffered a prior
felony conviction. Respondent concedes this point, and we agree,
for the following reasons.
The petition filed June 21, 2019 alleged M.U. committed
one count of possession of a firearm by a felon in violation of
section 29800, subdivision (a)(1). However, section 29800,
subdivision (a)(1) applies only to those previously convicted of a
felony or of an offense enumerated in section 23515, subdivisions
(a), (b), or (d). (§ 29800, subd. (a)(1).)
The People provided the juvenile court with a certified
minute order dated December 17, 2018, for Los Angeles Superior
Court case No. YJ39345, adjudicating M.U. guilty of grand theft
(a felony) in violation of section 487, subdivision (c), as alleged in
a petition filed September 14, 20177 However, an “order
adjudging a minor to be a ward of the juvenile court shall not be
deemed a conviction of a crime for any purpose, nor shall a
proceeding in the juvenile court be deemed a criminal
proceeding.” (Welf. & Inst. Code, § 203, italics added.)
Furthermore, nothing in the language of section 29800,
subdivision (a)(1) indicates that the requirement of a felony
conviction is satisfied by a juvenile adjudication of a felony
offense. Accordingly, count 2 must be reversed.
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DISPOSITION
The November 12, 2019 adjudication order is reversed as to
count 2. On remand, the juvenile court is directed to recalculate
the maximum term of physical confinement and amend its
dispositional order accordingly. The juvenile court is further
directed to forward copies of all such pertinent documents to the
Department of Corrections and Rehabilitation, Division of
Juvenile Facilities. In all other respects, the adjudication order
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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