Metropolitan News-Enterprise


Monday, January 28, 2002


Page 1


Intention to Take Shower Sufficient for Residential Burglary Conviction, Appeals Court Rules


By a MetNews Staff Writer


A defendant who claimed he entered a residence while the owner was gone merely to take a shower was properly convicted of burglary, the Fourth District Court of Appeal has ruled.

“[W]e are satisfied that intending to use the soap, shampoo and hot water of the homeowner constituted an intent to commit a larceny under the circumstances of this case,” Justice Richard Huffman wrote Thursday for Div. One. “Each of the items to be taken and consumed would have some, albeit slight, intrinsic value.  That is all that is required for the item to be a proper subject of larceny in this state.”

The decision affirms Carlos Mario Martinez’s conviction and 13-year, second-strike prison sentence for burglarizing a San Diego County residence. Police, called by the occupant, found Martinez naked in a closet.

Martinez admitted at trial that he entered the house and took some food, but said that when he entered, it was solely because he wanted to take a shower.

Martinez  claimed he showered, shampooed, and shaved. He said he remained in the house, naked, because he was comfortable.

A police officer denied that Martinez said anything about taking a shower. The occupant said there was nothing to indicate that anyone had taken a shower or used soap or towels in the bathroom.

Martinez was charged with residential burglary, which under Penal Code Sec. 459 requires proof that the defendant entered with intent to commit “larceny or any felony.” A prior Court of Appeal decision held that “larceny” refers to the crime of theft, defined in Sec. 484(a), rather than to common-law larceny

Prosecutors argued that Martinez intended to take food. But even if he was telling the truth, they contended, the intent to consume water, soap, and shampoo was larceny.

Huffman agreed, rejecting the defense argument that use of a “miniscule amount” of such commodities is not larceny.

That may have been true at common law, Huffman explained. But under Sec. 484(a), the justice said, a person commits theft if he takes property having “some intrinsic value, however slight,” with intent to permanently deprive the owner of it.

Past decisions, Huffman noted, have applied that rule to the taking of ration stamps—the case was decided in 1946—and to an empty cigarette carton.

The case is People v. Martinez, 02 S.O.S. 402.


Copyright 2002, Metropolitan News Company