Fond

Here we hold, among other things, that a hospital room in a locked psychiatric hospital is an inhabited dwelling for the purpose of first degree burglary.

Philip Fond was convicted after a jury trial on one count of misdemeanor indecent exposure (Pen. Code, § 314, subd. I); one count of forcible rape (§ 261, subd. (a)(2)); and one count of residential burglary (§ 459). The jury also found true that Fond committed the rape during the commission of a first degree burglary (§ 667.61).

The trial court sentenced Fond to 15 years to life for rape. The court found the 25-year-to-life sentence mandated by section 667.61 to be cruel and unusual punishment under the circumstances here. The court sentenced Fond to a concurrent 180 days for indecent exposure and stayed a 4-year sentence on the burglary count pursuant to section 654.

On appeal Fond contends that a locked psychiatric hospital is not an inhabited dwelling house for the purpose of first degree burglary; that the trial court improperly denied Fond’s motion for a new trial on the burglary count; and that there is insufficient evidence of forcible rape.

The Attorney General contends that the 25-year-to-life sentence…