Thursday, November 18, 2010 at 9:45 a.m.
Can a person be charged with burglarizing his own home?
It's not a trick question, but rather one that was debated this week at a California Court of Appeal based in Santa Ana.
The answer might surprise you:
It depends, according to a three-justice panel.
The issue arose from a criminal conviction appeal by Christopher Adam Brown, a serial child molester. In 2006, an Irvine husband and wife allowed Brown--who'd raped and sodomized his own two underage sisters seven years earlier--to move into their garage in exchange for performing occasional odd jobs like babysitting their two kids.
About nine months later, Brown was allowed to move from the garage to the living room and then into the bedroom occupied by the couple's oldest daughter, who was 21 years old. For "four or five months," according to court testimony, the 23-year-old man lived there without objection. Then, in the wee hours of November 19, 2006, Brown entered the bedroom of the couple's 12-year-old daughter, stroked her vagina and buttocks and hid behind a toy tea set when she began crying. The victim's father entered the room and the daughter revealed the incident.
In addition to the lewd and lascivious acts on a minor charge, Orange County prosecutors also slapped Brown with a burglary count, a move that significantly boosted the mandatory minimum sentence to 25 years to life. Though Brown professed his innocence, a 2007 jury in Newport Beach convicted him and Superior Court Judge Craig E. Robison ordered him to reside in a prison until at least 2032.
Brown appealed claiming that it was impossible to burglarize a home that he was living in with obvious authorization from the owner. He even cited a prior appellate case that overturned the burglary conviction of a man who entered his roommate's bedroom and shot him. But the argument failed in the Irvine circumstances.
"The appropriate question to ask in this case is not whether a person can burglarize his own place of residence," wrote Justice Raymond Ikola on behalf of his colleagues, justices William Rylaarsdam and Richard Fybel. "It is more productive to ask whether the defendant, a live-in boyfriend of a homeowner's daughter, has an unconditional possessory right to enter the premises? And, even if the defendant's status entitled him to an unconditional possessory right to enter the home, did the defendant have an unconditional possessory right to enter the bedroom of the homeowner's child?"
No and hell no, the three justices concluded in response to their own questions after citing this: "Every person who enters any . . . room . . . with intent to commit . . . any felony is guilty of burglary."
Brown: But I lived in that house!
In an another attempt to undermine the conviction, Brown argued that Judge Robison had given the jury a faulty instruction and that his defense lawyer had been incompetent. The justices rejected those assertions too.
Brown, who admitted to Irvine police that he has trouble controlling his sexual "urges," now has to decide if he'll ask the California Supreme Court to overturn this appellate decision.
--R. Scott Moxley / OC Weekly