Singleton

Burglary of an inhabited dwelling house is a violent felony when it is charged and proved that a person other than the defendant or an accomplice “was present in the residence during the commission of the burglary.” (Pen. Code, § 667.5, subd. (c)(21).) The issue presented in this case is whether a resident’s presence in the hallway outside of an apartment unit during a burglary is sufficient to satisfy the requirement of section 667.5, subdivision (c)(21). We hold it is not.

A jury convicted defendant and appellant Richard A. Singleton of two counts of first degree burglary of an inhabited dwelling house (§§ 459, 460). The jury found true a special allegation that a person, other than an accomplice, was present during the second burglary, thus making the burglary a violent felony (§ 667.5, subd. (c)(21)). Defendant admitted suffering a prior conviction under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court sentenced defendant to state prison for a term of eight years.

In his timely appeal, defendant contends the trial court violated his due process rights by failing to properly instruct the jury on the definition of “in the…