Is defendant's claim that the prosecution failed to plead and prove he burglarized an inhabited dwelling meritless?

California, United States of America

The following excerpt is from People v. Magdaleno, G052252 (Cal. App. 2015):

Finally, defendant's claim that the prosecution failed to plead and prove he burglarized an inhabited dwelling is meritless. "A charge of 'burglary' includes burglary of whatever degree, and a first degree verdict thereon need not include the circumstances which constitute such degree." (People v. Nunez (1970) 7 Cal.App.3d 655, 663.) In any event, the appellate record reflects defendant was charged by information with burglarizing an "inhabited dwelling" (capitalization omitted) and the abstract of judgment shows he was convicted of burglary in the first degree. ( 460, subd. (a) ["Every burglary of an inhabited dwelling house . . . or the inhabited portion of any other building, is burglary of the first degree"].) From this we conclude defendant's argument is frivolous.

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