Filed 2/25/21 In re M.U. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re M.U., a Person Coming Under 

the Juvenile Court Law.

______________________________

THE PEOPLE,

Plaintiff and Respondent,

v.

M.U.,

Defendant and Appellant.

B302971

(Los Angeles County

Super. Ct. No. YJ39345)

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.

_________________________
2

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, 
3

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.
4

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.
5

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.
6

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” 
7

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 agerelated 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. 
8

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.)
9

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.)
10

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.
11

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.