People v. Fisher CA3

FACTS AND PROCEEDINGS

Count 1 was pleaded in the first amended information as follows: “On or about March 10, 2012, in the County of Placer, the crime of BURGLARY of UNINHABITED DWELLING, in violation of Penal Code section 459, a felony, was committed by [defendant], who did unlawfully enter 43955 Highway 20 with the intent to commit larceny and any felony.” Section 602.5, entitled “Unauthorized Entry of Dwelling” provides in subdivision (a) that: “Every person . . . who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof, is guilty of a misdemeanor.” This crime is commonly known as simple trespass. The evidence at trial showed the following as to count 1:

2 Derrick McDade owns a 20-acre property at 43955 State Highway 20 in Emigrant Gap in the Sierra Nevada mountains, about 2.2 miles from Interstate 80. There is a four- story, 10,000-square-foot log cabin on the property built by McDade’s father, but left unfinished at his death in June 2010. The cabin is 60 or 70 yards from Highway 20 and can be seen from the road. It was “[a]bout three-quarters…