People v. Tessman
223 Cal. App. 4th 1293
| Cal. Ct. App. | 2014Background
- Tessman attended open houses in Carlsbad and was observed in Johns’s home going upstairs and handling a jewelry box during an open house; later some jewelry was discovered missing from Johns’s residence.
- Marinova reported multiple necklaces stolen from her home during open-house periods; one necklace Tessman sold to a pawnshop was later identified by Marinova and recovered.
- Police traced the pawnshop sale to Tessman; Tessman admitted attending open houses and pawning jewelry but denied theft, claiming prior lawful possession from an employer.
- Tessman was tried in a bench trial and convicted of one count of residential burglary (§§ 459, 460(a)) and one count of commercial burglary (§ 459) based on entering a pawnshop to pawn stolen property.
- On appeal Tessman argued (1) the Johns residence was not an "inhabited dwelling" during an open house, so residential burglary (first degree) was improper; and (2) the commercial burglary conviction may have rested on an incorrect theory because the court suggested constructive knowledge (“should have known”) rather than actual knowledge was sufficient for the predicate offense of receiving/selling stolen property.
- The court affirmed the residential burglary conviction and—after analyzing bench-trial reasoning—affirmed the commercial burglary conviction but modified a probation condition to match the oral sentence.
Issues
| Issue | Tessman’s Argument | People’s/Trial Court’s Argument | Held |
|---|---|---|---|
| Whether Johns’s house was an "inhabited dwelling" for first-degree burglary | Open house made the property commercial/uninhabited; owner absent; thus not an "inhabited dwelling" | Home remained an inhabited dwelling because owner lived there, kept belongings, and had not permanently moved out | Affirmed — house was "inhabited" because it was currently used for dwelling even though temporarily unoccupied |
| Whether commercial burglary conviction may rest on legally incorrect theory (constructive vs actual knowledge of stolen nature when pawning) | Court relied on "knew or should have known" standard; but predicate offense (§ 496) requires actual knowledge, so conviction must be reversed if based on constructive knowledge | Trial court focused on pattern, timeline, and found Tessman actually knew the items were stolen; the "should have known" remark was a secondary slip | Affirmed — appellate court concluded the bench decision showed the judge found actual knowledge; the constructively phrased remark was a secondary slip and did not undermine the verdict |
Key Cases Cited
- People v. Cruz, 13 Cal.4th 764 (defines "inhabited" as currently used for dwelling purposes, whether occupied or not)
- People v. Little, 206 Cal.App.4th 1364 (open-house temporary absence does not render residence uninhabited)
- People v. Allard, 99 Cal.App. 591 (temporary absence without intent to abandon does not destroy residence status)
- People v. Villalobos, 145 Cal.App.4th 310 (dwelling remains "inhabited" until occupants permanently cease using it as living quarters)
- People v. Perez, 35 Cal.4th 1219 (when jury verdict may rest on valid and invalid theories, reversal required unless record shows verdict necessarily rested on valid theory)
- People v. Green, 27 Cal.3d 1 (same rule for juries—alternate theories; conviction cannot stand if it may rest on invalid theory)
- People v. Butcher, 185 Cal.App.3d 929 (bench-trial context where judge’s erroneous legal reasoning required reversal where record showed reliance on incorrect statutory interpretation)