Justice Raye says in this case: "[I]n the law of burglary what seems plausible often is not."
Truer words were never spoken. The law of burglary -- especially in California -- is so far afield from what one would initially conceive that it's hard to fathom. So, yeah, these cases are hard.
As for the merits, I'll let Justice Raye's opinion and Justice Nicholson's dissent largely speak for themselves.
The basic facts are straightforward. X lives in House, and then moves to Other House and rents to Y. Y then moves out of House -- vacating it entirely -- and X plans to (but has not yet) moved into House from Other House when Defendant enters House and steals wires and the like. Is that first-degree burglary or is it second degree? Which is to say: Is the house "inhabited" or not? After all, no one currently lives there.
Justice Raye says no. Justice Nicholson says yes.
I would nonetheless pose one hypothetical to Justice Nicholson. Same facts as here. But X plans to move into House not in a week or two, but in a year or two. Or a decade or two. Same result? After all, House is equally vacant -- yet owned and occupied in both the past and future by X -- in all such scenarios. So the result should be the same, right? Yet it seems absurd to say that a home vacant for twenty years nonetheless is inhabited. Justice Nicholson concludes his dissent by saying "Noor said that, at the time of the burglary, he intended to move into the house in the near future. To me, that, combined with the fact that he had lived there before, made the house an inhabited dwelling." (emphasis added). But while the "near future" caveat avoids by hypo, it's both unexplained and seemingly unprincipled. Seems to me you have to embrace the horror. Otherwise Justice Raye's contrary principle might be a brighter-line rule and/or superior in terms of policy and intent.
None of which is to say that figuring out what counts as burglary in California is easy. And/or makes sense. Since it's anything but.
