Metropolitan News-Enterprise


Wednesday, January 23, 2008


Page 3


Man Properly Convicted of Burglarizing His Own Home, C.A. Rules


By a MetNews Staff Writer


A Stockton man was properly convicted of burglarizing his own home after he left at his wife’s demand, but came back and sexually assaulted her, the Third District Court of Appeal ruled yesterday.

The court affirmed Andrew W. Gill’s convictions for burglary and nine other felonies, including kidnapping, spousal rape, rape by foreign object, and making criminal threats. He was sentenced to an aggregate prison term of 64 years, eight months to life in prison.

Prosecutors presented evidence that after his wife—whom the court identified only by the initials T.G.—told him to leave the house because he hadn’t found a job or gotten help for his depression, as she had demanded earlier. Gill left but returned early the next morning, broke into the house, grabbed his wife, told her she was going to “die tonight,” and pulled her into the garage, where he sexually abused her.

He later put her in the backseat of the family car, completely naked, bound her feet, and drove toward Sacramento, according to the testimony. He then pulled off the road, got in the back seat, and forced her into oral sex.

She cooperated, she testified, because she feared for her life. The defendant later tried to kill himself, but failed, and eventually turned himself into police.

On appeal, the defense contended that a man who breaks into his family home after a marital fight is not guilty of residential burglary, and that the court denied Gill his federal and state constitutional rights to due process and a fair trial by allowing him to be charged and convicted of a “non-offense.”

But Justice Tami Cantil-Sakauye, writing for the Court of Appeal, said the conviction was proper. She cited cases holding that defendants who returned to their homes after being ordered to leave could be convicted of burglary.

She explained:

“Although the aforementioned cases are factually dissimilar to this case in that T.G. did not have a court order granting her sole possession of the family home, was denied an emergency protective order, and defendant had only been out of the house for one day and evening, we believe the facts are within the principles annunciated in [those] cases.  Here, the evidence showed that T.G. asked defendant to leave the residence and he did so.  Later that day, at T.G.’s request, [a friend] delivered a suitcase and money to defendant.  [The friend] collected defendant’s house keys from defendant without objection and returned them to T.G.  By voluntarily leaving the house, giving up his house keys on January 31, 2004, and heeding the directives of T.G. to stay out of the family home, defendant waived his unconditional right to enter the home.”

She continued:

“By obtaining the house keys voluntarily from defendant, T.G. exerted possessory control over the family home to the exclusion of others, specifically the defendant....Defendant’s subsequent conduct demonstrated that he gave up his right to possessory interest in the house and understood he did not have the right to enter the residence at will.  He parked his car on the public street in front of the house, and although he was upset, he did not attempt to enter or otherwise go inside the house.  When the police arrived, defendant told them that while he thought it was unfair that he had to be the one to leave the home, he intended to wait in his car until T.G. let him back into the house.  Although defendant was angry that he had been treated unfairly, he clearly knew that circumstances had changed.”

The case is People v. Gill, C051108.


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