People v. Davenport

• Decision Date: 18 April 1990
• Docket Number: No. F011210,F011210
• Citation: People v. Davenport, 268 Cal.Rptr. 501, 219 Cal.App.3d 885 (Cal. App. 1990)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary DeWayne DAVENPORT, Defendant and Appellant.

Page 501

268 Cal.Rptr. 501

219 Cal.App.3d 885

The PEOPLE, Plaintiff and Respondent, v. Gary DeWayne DAVENPORT, Defendant and Appellant.

No. F011210.

Court of Appeal, Fifth District, California.

April 18, 1990.

Certified for Partial Publication ^*

Rehearing Denied May 11, 1990.

Review Denied July 18, 1990.

[219 Cal.App.3d 886] Oliver J. Northup, Jr., under appointment by the Court of Appeal, Davis, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Gelacio L. Bayani, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BAXTER, Associate Justice.

INTRODUCTION

The published parts of this opinion involve appellant's conviction of burglarizing a cabin owned and occupied by his estranged wife's parents. His primary contention on appeal is that since his wife also resided there, Civil Code section 5102, subdivision (a) gave him an unconditional right to enter, thereby precluding a burglary conviction as a matter of law.

STATEMENT OF THE CASE ^**

FACTS

A. Background.

Mary and Larry Hillier own a two-story cabin at Long Barn, which is the subject of the first degree burglary conviction on count V. The second floor is accessible only from exterior stairs and consists of two small bedrooms and some storage space. The kitchen, bathroom, and a bedroom are on the first floor.

They purchased the cabin in May of 1984 and commenced living there full time in October. Later, Mary moved to premises closer to her work and spent weekends at the cabin with Larry. She lived full time at the cabin from May or June of 1986 through the balance of that year.

Appellant married the Hilliers' daughter, Gina, in 1984. Gina moved into her parent's cabin in May of 1985, and appellant joined her in July. They moved into an apartment for approximately three months, but in the winter of 1985 returned to live in the cabin. Gina and appellant slept upstairs and the Hilliers slept downstairs. The kitchen and bathroom facilities were shared. Gina and appellant separated on February 15, 1986. Appellant moved out of the cabin and Gina continued to live there. Gina moved into the bedroom downstairs to accommodate her pregnancy and gave birth to their daughter in April. Appellant relinquished his keys to the cabin in April at Mary Hillier's request.

Appellant left behind certain items of personal property when he moved out. Gina informed him that she had boxed and stored his items upstairs so that he wouldn't have any reason to come onto the first floor area to retrieve them. She insisted on being present when he came to get his things. Appellant, assisted by a friend, took possession of some of his personal property in late August. Gina refused them entry onto the first floor and directed them to where the items were on the second floor.

Although Gina and appellant were divorced prior to trial, no legal proceeding of any type had been filed prior to appellant's arrest in September 1986.

During the evening of September 3, 1986, appellant and codefendant Erin Hiatt set out to drive from Modesto to Long Barn to pick up appellant's belongings remaining at the Hillier cabin and to return Gina's pickup truck. Appellant was driving a borrowed yellow flatbed truck and Hiatt was driving Gina's pickup. The flatbed had mechanical problems and was left parked alongside Mill Villa Road off Highway 108. They proceeded to Long Barn in the pickup, arriving at 2 a.m.

B. Caltrans crimes.

The Caltrans maintenance yard adjoins the Hillier cabin. Appellant and Hiatt entered the Caltrans yard by climbing over its six-foot fence and broke into and ransacked the office and truck shed barn. They placed a large quantity of Caltrans's personal property, including calculators, walkie-talkies, cameras, cash, chain saws, a hand grinder, drill motors, sockets, pipe wrenches, and various hand and power tools, into a 1980 Caltrans pickup, drove out of the yard, and transferred the stolen property into Gina's pickup. Appellant hid the Caltrans pickup off the road. They left in Gina's pickup to retrieve the flatbed.

They drove the disabled flatbed truck to Jamestown and left it at a business called Whistle Stop. They proceeded in Gina's pickup to Modesto and to Turlock. In the early morning hours of September 5, 1986, Sharon Stetson became concerned when Hiatt asked her son to store "some stuff" in their garage overnight. She had Hiatt write down his name, address and license number on a piece of paper and sign it. She called the Turlock Police Department the next day. The property was identified as taken in the Caltrans burglary.

C. Burglary of the Hillier cabin.

Appellant and Hiatt returned to Jamestown on September 5 and got the yellow flatbed truck repaired with the assistance of a mechanic. They took the flatbed and Gina's pickup to Long Barn and backed them up to the cabin. No one was there, as Mary Hillier, Gina and her daughter were spending the day in Sunnyvale. Appellant and Hiatt broke through windows on both floors of the cabin and loaded the trucks with Gina's and Mary Hillier's belongings. They ransacked the cabin. Tracey Espinoza, another daughter of the Hilliers, unexpectedly drove into the cabin's driveway with her friend, Fred Miller, at 7 p.m. They saw the loaded trucks and notified the police. Mary Hillier arrived approximately 20 minutes later, identified her property and confirmed that appellant and Hiatt did not have permission to enter the cabin.

D. Theft of vehicles.

When Tracey Espinoza drove up the cabin driveway, appellant thought it was his father-in-law and fled from the cabin to where the stolen Caltrans truck was cached. He hot-wired the vehicle and drove for a few miles. Smelling gas, he recalled having cut the fuel line the morning of the theft and stopped the vehicle. When he tried to restart the engine through the use of a screwdriver, a spark ignited the gasoline and the vehicle caught fire.

Appellant left the burning Caltrans truck and ran to a white Ford pickup truck that its owner, David Gilmour, had left along Wards Ferry Road when its brakes malfunctioned earlier that day. Appellant drove off without brakes in Gilmour's truck. He was arrested in Sonora and gave the arresting officer a false name.

DISCUSSION

I.

DID APPELLANT HAVE AN UNCONDITIONAL STATUTORY RIGHT TO ENTER THE HILLIER CABIN? IF SO, SHOULD THE BURGLARY CONVICTION ON COUNT V BE REVERSED AS A MATTER OF LAW?

Penal Code section 459 provides in relevant part:

"Every person who enters any house, room, apartment, tenement ... or other building, ... with intent to commit grand or petit larceny or any felony is guilty of burglary...."

Appellant contends the burglary conviction on count V must be reversed because he had the unconditional right to enter the Hillier cabin under Civil Code section 5102, subdivision (a), which in pertinent part provides:

"(a) ... [N]either husband nor wife has any interest in the separate property of the other, but neither can be excluded from the other's dwelling...."

Appellant maintains the following uncontroverted facts existed when the alleged offense occurred triggering application of the statute and thereby making his entry into the cabin immune from burglary: (1) his marriage to Gina; (2) Gina being a resident of the cabin; and (3) the absence of any court proceeding to terminate their marriage or otherwise limit their respective rights and obligations to one another and, specifically, to occupancy of the cabin. He reasons that the statutory prohibition against exclusion is equivalent to an unconditional right of entry.

Appellant's attempt, however, to cast section 5102, subdivision (a) in absolute terms is not supported by interpretations of this section's predecessor statutes, Civil Code sections 156 and 157. In analyzing these predecessor sections, one court made the following observations:

"The appellant contends the plaintiff could not recover in ejectment because neither the husband nor the wife could be excluded from the dwelling of the other, reliance being placed upon the provisions of sections 156 and 157 of the Civil Code. At the time of the commencement of this action the house was not the family dwelling place. The parties were living separate and apart. The provisions of sections 156 and 157 relate to the marital right of the spouses to occupy the family home." (McDuff v. McDuff (1919) 45 Cal.App. 53, 56, 187 P. 37.)

The McDuff court held that in an ejectment action one could recover from his or her spouse notwithstanding Civil Code sections 156 and 157 because the parties were no longer living together. It found that the provisions of the predecessor statutes to section 5102 related solely to a marital right of spouses to occupy a family home. The McDuff court acknowledged the factual reality in that case that though the McDuffs were still married to each other they were no longer living together in a single family residence.

In People v. Sears (1965) 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938, the defendant moved from the family residence to a hotel. Three weeks later, defendant entered the family residence through the unlocked front door with a pipe under his shirt. After getting his wife out of bed, an argument ensued and he proceeded to assault her. Defendant's step-daughter attempted to intercede on her mother's behalf and was assaulted and killed by the defendant. Although the Supreme Court reversed the first degree murder conviction and death sentence on other grounds, it concluded that the evidence supported the burglary instruction given by the trial court and advised that a felony murder burglary instruction be given on retrial.

"We reject defendant's contention that the court should not have given the burglary instruction because defendant, as Clara's husband, had a right to enter the family home. One who enters a room or building with the intent to commit a...