The Premeditation Element of Burglary Cannot Be Presumed

22 Apr 2023
CAB00208

The Premeditation Element of Burglary Cannot Be Presumed (Peo. v. Myles (2023) 4DCA, 2023 WL 2607483, 2023 Cal. App. Lexis 214). 
By: Ray Hill, Professor Emeritus, Santa Rosa Junior College 

This case is not the biggest burglary in the annals of criminal justice history, but it emphasizes the proper approach in proving the premeditation element of 459 P.C. This case got reversed on appeal, not because of bad police work, but because of erroneous jury instructions given by the trial judge. The case will be remanded back to San Diego County Superior Court for retrial. The good part of this decision is that the Fourth District Court of Appeals ruled “there is sufficient evidence in the record from which a rational trier of fact could find the specific intent element of the charged offenses”.  So the prospects for a second guilty verdict or plea bargain look good. 

The defendant, Mr. Myles, was a homeless and mentally unstable man, who was a crime-oriented “pain in the butt”. The San Diego County DA’s Office took his prosecution seriously. He ended up being convicted and sentenced to 14 years / 8 months in prison for Burglary 1st Degree; Attempted Burglary 1st Degree; Committing a Crime While Out on Bail/O.R. (a 245(a) P.C. offense occurring April 2020 where he assaulted a store clerk after stealing cigarettes) and having a Prior Strike Conviction (a first degree burglary conviction in December 2019).  

In May 2020, the defendant broke a kitchen window to access a latch and entered an Oceanside residence. The home was in probate proceedings. A father and son lived away from the residence, however visited the residence periodically for maintenance purposes. After entry, the defendant unplugged the touch screen module for the house alarm, placed it face down, and remained in the house for approximately 15 hours. During this time, he consumed a box of juice, a can of ginger ale, and ate ice cream belonging to the homeowner. The homeowner’s van was parked in the garage with a dead battery. Defendant charged the battery and drove the van to a Circle K where he purchased malt liquor, then drove back to the residence and parked the van in the driveway.  

The homeowner was in Los Angeles when he received a surveillance alert on his cell phone. Upon arrival at the house, he confronted the defendant and called 9-1-1. After some conversation, defendant grabbed a pair of scissors and backed out of the house into the arms of responding officers. An arrest search revealed a bag of methamphetamine on his person.  

In January 2021 while the defendant was out on bail, a second incident occurred at the same residence. A surveillance video showed the defendant holding a rock and attempting to break the same kitchen window. He was unsuccessful in making entry. 

Defendant claimed he suffered from a mental disorder that caused him to believe the house belonged to him and that the home had been given to him by an “entity” named Archangel Michael. Expert testimony was presented as to the defendant’s mental condition, but the conclusion was that he was “quite lucid”. “was aware of his current crime”, and could possibly be malingering. 

The elements of theft are straightforward. Taking possession of the personal property of another, without one’s consent, with the intent to permanently deprive the owner of the property 

For the purposes of theft, the property taken is of intrinsic value, however slight (Cal. Crim. No. 1800). Examples: 

Illegal entry and placing an unauthorized phone call where the charges were billed to the victim (Peo. v. Dingle (1985) 174 Cal. App. 3d 29); Illegal entry and taking a shower using a miniscule amount hot water, soap and shampoo (Peo. v. Martinez (2002) 95 Cal. App. 4th 582). 

The specific intent element of burglary requires a showing of intent to permanently deprive prior to entering the residence. This intent cannot be presumed. In this case, the court ruled this burden of proof was met because:  

  1. Defendant forcibly entered into the residence; 

  1. Contemporaneous with entry, he unplugged the link to the home security system in an obvious attempt to avoid detection; 

  1. He consumed food belonging to the homeowner. 

  1. A prior uncharged burglary was presented as evidence to show planning, absence of mistake of face, and common method operation (1103(b) E.C.). 

So kudos to the Oceanside P.D. officers and investigators in doing a great job in gathering evidence. Not their error! 

Stay Safe, 

RH