A homeless man who entered a Mission home last November allegedly seeking shelter was acquitted Tuesday of burglary charges that carry a 17-year sentence.

The acquittal came some five months after Phillip Martinez’ November 3 arrest. Unable to post the $100,000 bail, Martinez has been in jail. He remains in jail on an unrelated misdemeanor charge but his lawyer said he is likely to be set free on Monday.

Following a day of deliberation, jurors found that the 29-year-old man had no intent to steal when he entered a unit at 22nd and Guerrero streets. His lawyer argued that Martinez believed the building to be empty.

“He needed a place to rest and was not there to steal,” said Tamara Aparton, spokesperson for San Francisco Public Defender Jeff Adachi.

Martinez did not remove any property from the residence, and was found by police resting in a chair at the time of his arrest.

“They chose not to charge him with trespassing – they charged him with a felony that could have gotten him years in prison,” said Aparton. 

Adachi said prosecutors “overcharged” the case, according to Aparton.

According to court records, Martinez, a convicted felon, has a 2009 burglary conviction in another county, but that evidence was excluded from the case by a judge.

“We respect the jury’s decision,” said Max Szabo, communications manager for the San Francisco District Attorney’s Office.

According to Martinez’s lawyer, Deputy Public Defender Hadi Razzaq, Martinez told police repeatedly at the time of his arrest that he thought the building where they found him was under construction and empty.

From outward appearances, it didn’t appear anybody was living in it. There was scaffolding and trash piled outside,” said Razzaq.

Razzaq said the building was undergoing months of “significant remodeling” when Martinez climbed up its scaffolding at around 9:20 p.m.on November 3, entering the home through an unfinished attic.  

Unbeknownst to Martinez, the building’s owner had allowed a construction worker to live in the home during the renovations. The worker was in a bedroom with his girlfriend preparing to go to sleep when he heard noises coming from another room, Razzaq said.  

The construction worker found Martinez in a room that served as an office and had several computer monitors, the building owner’s laptop and construction tools.

Razzaq said that the construction worker saw Martinez “squatting over a box but couldn’t see what he was doing with his hands.”

The worker immediately notified police who, upon arriving some 15 minutes later, found Martinez still in the office, but sitting in a chair. When Martinez was arrested, he did not have any stolen property on him, according to police.  

Police seized a pair of sweatpants, shorts, a towel and a vick’s vaporub – the property belonged to Martinez and was not indicative of Martinez’ intention to commit a burglary, said Razzaq.

“Philip might have eaten some food, drank juice, moved a utility knife and turned on the water,” said Razzaq. “But the bottom line is: he didn’t even have a bag, backpack, wallet, phone, ID or keys on him.”

According to Razzaq, Martinez entered the foster care system at three years old and has been periodically homeless since he turned 16. 

Days before his arrest, on October 29, Martinez appeared at the front steps of his court-appointed special advocate, one who works with abused or neglected children in foster care.

The advocate has known Martinez for some 20 years and testified in court that he found Martinez sleeping on his porch, seemingly “tired, hungry and withdrawn.”

Razzaq said the prosecutor argued that Martinez’s homeless predicament was irrelevant and that he entered the home with the intent to steal.

But Razzaq refuted this notion.

Homelessness, as we all know, is complicated,” said Razzaq. 

While originally charging Martinez with residential burglary – entering into a home and having the intent to commit a theft – the District Attorney changed that charge mid-trial, suggesting that it was a “room to room burglary.”

Razzaq said the “law supports the idea that you look into a room and see what is in there, and you could be convicted of burglary under those circumstances.”

“It’s a case based entirely on circumstantial evidence,” said Razzaq. “The circumstantial evidence that was most persuading is that he didn’t take anything.”

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