Deputy District Attorney Sulaiman Tokhi argued that this is a case where “bad liars meet good evidence.” During these troubled economic times, crimes involving the stealing of metal pipes such as copper and turning them into recycling centers have increased in numbers.
The evidence against the defendants having committed a crime in this case is overwhelming and unavoidable. On May 2, 2011, the two were seen leaving the backyard of the house in question. They were confronted by neighbors, concocted a story, and left on foot.
The home had been rented by a woman named Barbara Mattos. She had cleaned out the home of all her furniture and had been asked to leave. As of May 1, 2011, Ms. Mattos had completely moved all of her personal property out of the house and vacated the premises.
In the meantime, the owner did not move back into the house until May 4, 2011. In the meantime it was discovered that the rear door was forcibly kicked, someone had entered the house, and attempted to take copper wire out of the walls and the ceiling.
In addition, they had attempted to steal piping from the furnace, completely destroying the furnace.
While the individuals claimed to have come to visit a woman named Jamie, who was the girlfriend of the nephew of the previous renter, the DA contended that they entered the home with the intent to steal metal for cash, that they lied when asked about it, told inconsistent and ever-shifting stories and lied to the police about looking in the home.
Mr. Tokhi argued that they had no reason to lie, other than being guilty of a crime. Investigators found fingerprints inside that match the defendants’.
Faced with this overwhelming amount of evidence, the jury convicted Mr. Cummings and Ms. Burkett on all charges.
The case, however, gets interesting on one critical point – whether or not this is an inhabited home. This is not an idle point, as the whether the home is inhabited draws the distinction between a 2nd degree burglary and the more serious 1st degree burglary.
During closing arguments, this point became a critical point of contention between the two sides. Mr. Tokhi advanced the argument that the Michigan Blvd. address was an inhabited house, despite the fact that no one was in the house and there was no furniture.
Mr. Tokhi would construct an argument in closing, out of case law, that would appear to have diverged greatly from the jury instructions on the definition of an inhabited home.
This would spawn a series of objections from the defense, who argued that it was improper for the deputy district attorney to argue points in contradiction to the official jury instructions.
Judge David Rosenberg, from his perspective, told the jury that he would allow the attorneys to make their arguments. Their argument is not evidence and only one person instructs the jury on the law – Judge Rosenberg.
Mr. Tokhi’s argument that the test for an inhabited home is not if there is furniture in the house, but rather it is the intent to use the home as a dwelling.
He would argue that there was not in a day in that week where someone did not stay there. He argued that there could have been someone in that home at that time – it was the owner’s intent to return to that home.
But here again there is a gray area. If you look at CalCrim No. 1701 on burglary degrees, you see that a house is considered inhabited “if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.”
However, it is “not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.”
Judge Rosenberg, as well as Judge Shockley, who heard the preliminary hearing before the trial, left the issue of inhabited dwelling in the hands of the jury rather than making a legal ruling. It seems likely that this point will go to appeal and an appellate court may at some point weigh in on this point.
It is worth noting that in a motion to dismiss, per a Penal Code §995 motion, the Public Defender’s office pointed out that originally both defendants were charged with and pled not guilty to the charge of second degree burglary.
However, the case ran up against the 60-day deadline and the defendants declined to waive their right to a speedy trial.
According to a filing from Deputy Public Defender Emily Fisher, “Due to circumstances beyond Mr. Cummings’ control, the case was continued beyond the 60th day to August 15, 2011. The jury trial did not commence on August 15, 2011 so Mr. Cummings filed a motion to dismiss on August 16, 2011 and the court granted the motion over the district attorney’s objection.”
The District Attorney’s office would refile the complaint against the co-defendants, however, this time they would be charged with first degree burglary.
Rod Beede, attorney for Ms. Burkett, would argue in the 995 motion to dismiss the first degree burglary charge, saying that “no evidence exists to sustain” the charge of first degree burglary as “facts adduced at two Preliminary Hearings showed clearly that the house was completely vacant, not a stick of furniture therein. The previous occupant had moved all her belongings out of the home; .the owner was not to re-inhabit the home for at least three days after the break-in, and had not brought any belongings into the fully vacant and unoccupied home.”
Citing People v. Cardona from 1983, Mr. Beede argued, “If residents move out of a dwelling without intending to reside there again, even if they continue to pay rent and store belongings, the house is uninhabited for purposes of First Degree Burglary.”
“The People have cited numerous cases where people had left their belongings in the home with the intent to return, whether it was a vacation home, temporary home, or other purposes,” Mr. Beede continued. “Obviously those were incidents where people intended to return to the residence and could have at any time.”
“In this case, the home was vacant; the vacating resident had moved out with no intention to return and the owner did not intend to return for at least three days after the break-in,” he adds.
After assessing more case law pointing in the same direction, Mr. Beede argued, “Would-be burglars who ascertain that a home is completely unoccupied, obviously at break-in, observing not a stick of furniture or an article of personal belongings, have no reason to believe that there are any occupants, let alone that any would return during the burglary and should not be held to first degree burglary exposure.”
Emily Fisher, in her separate motion to dismiss count one, cites People v. Long (2010) which argues, “[a] structure that 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.”
After going through another series of supportive cases in the case law, she argued, “In the present case, the record establishes that there was no occupant of the residence on May 2, 2011 at the time of the alleged burglary. The previous occupant had moved all of her property out and vacated the premises before May 1, 2011 and the new occupant did not move in until May 4, 2011. On the date of the alleged burglary, there was no furniture or personal property belonging to a former or future occupant within the residence. This is not a case where the occupant of the residence was merely temporarily away. This case is just like People v. Valdez, supra, 203 Cal.App.2d 559, where the residence was unoccupied at the time of the alleged burglary.”
The facts of the case are as adduced by the West Sacramento Police who interviewed Mersa Noor, the owner of the residences at both 1604 Michigan Blvd. and 1601 Michigan Blvd.
He told the police that he had owned two houses but he lost his other house so he needed to move back into the first house at the beginning of May.
Mr. Noor would not move back into the residence until May 4, while Ms. Mattos had cleaned up the residence and was out by May 1.
That means that at the time of the burglary on May 2, no one was inhabiting the residence.
However, Deputy DA Suleiman Tokhi sees the case law very differently, arguing that because there was an identifiable person who intended to use the house as sleeping quarters in the future, and because the owner had expressed his intent to return to the property, the courts have found that the houses are inhabited, regardless of the absence of the owners at the time of the burglaries.
In this case, there was an identifiable person, Mr. Noor, who “intended to move back into the residence at 1604 Michigan” Blvd.
He argued, “This property was Mr. Noor’s second home and he never lost title to the residence.” Moreover Mr. Tokhi maintained, “This is not a case where the owner simply notified the previous tenant to vacate the property with the intent to rent out the property to some other unidentifiable tenant at some point in the future. Rather, Mr. Noor notified the previous tenant, Ms. Mattos, that she had to vacate specifically because he intended to move back into the home at the beginning of May, and he in fact did move back in only two days after the burglary.”
He adds, “Regardless of Mr. Noor’s absence at the time of the burglary, he had full possessory rights to the property on May 2 when the burglary occurred. He was simply lucky that he hadn’t chosen to move in on May 2.”
He concludes, “Therefore, in this case, sufficient evidence was adduced at the preliminary hearing, under the diminished burden People face at the preliminary hearing, to hold the Defendants to answer for Count 1 of the Information.”
Both Judge Rosenberg and Judge Shockley chose to allow this to be a matter of facts rather than a matter of law. The jury was allowed to decide whether this should be a first or degree burglary and the jury chose first degree burglary.
However, it seems likely that the ultimate determination of this notable gray area will be an appellate court, and the fact that there was no inhabitant for a window of time and no possessions could weigh in favor of the defendants here.
That point remains to be seen.
—David M. Greenwald reporting
[quote]”In this case, the home was vacant; the vacating resident had moved out with no intention to return and the owner did not intend to return for at least three days after the break-in,” he adds.[/quote]
I can make an argument either way from logic as follows:
1) Obviously the home was meant to be a residence that was not ever “vacant” – residence was continuous without break, as one resident moved out on May 1 the other took legal possession and was to move in May 2. The burglars in this case cannot hang their hat on/exploit the notion the house is “uninhabited” just because a resident happens to be “away” from the premises for whatever reason, be it preparing to move in, on vacation, or at the store for a few hours. A burglar assumes the risk a house that is empty of furniture may not be “vacant”.
2) The purpose of differentiating first degree from second degree burglary is whether the house is vacant or lived in. Burglary is a far more serious crime if the house is lived in, since it presents a clear danger to the occupants of a dwelling. Society would prefer burglars to select uninhabited houses to burglarize rather than occupied ones as a matter of public policy. A house that has no furniture would appear to be vacated, so the burglar’s INTENT was to burglarize an uninhabited dwelling. For the purposes of determining first or second degree burglary, the standard should be what the burglar INTENDED.
Clearly the jury went with the first view…
Both are interesting points. I would add that the other basis for higher protection of residential dwellings is found in the constitutional protections that grant much greater privacy rights in home dwellings as oppose to in cars or in person. The invasion of a personal space is far more than the invasion into a commercial space.
The problem is that I think in this case, the judges deferred a matter of law rather than a matter of facts to the jury. Despite the arguments made by the DAs office, even they must have been conflicted on the issue charging it first as a second degree burglary and second as a first degree burglary.
[quote]The problem is that I think in this case, the judges deferred a matter of law rather than a matter of facts to the jury. [/quote]
When in doubt, punt to the jury! LOL
” Both are interesting points. I would add that the other basis for higher protection of residential dwellings is found in the constitutional protections that grant much greater privacy rights in home dwellings as oppose to in cars or in person.
It would seem that tough economic times make for some complicated and interesting circumstances.
How would this play out, for example, if a car was a person’s dwelling ? It seems that this is not such an unusual circumstance these days.
[quote]How would this play out, for example, if a car was a person’s dwelling ? It seems that this is not such an unusual circumstance these days.[/quote]
Interesting point!
If I own a home and there is nobody living in MY home, how does that give anyone the right to go in and trash it and steal anything from inside of it?????????? It should not matter if anyone is living in that home at that moment or not. If YOU dont own it or are renting it, do not go in and steal anything!!!!!! Seems pretty cut and dry to me!
” how does that give anyone the right to go in….”
No one is arguing the right to go into someone else’s property. The distinction is only whether the charge should be first or second degree burglary.