What is the test for a jury to find a defendant not guilty of a charge of burglary because there is no evidence that a structure was actually a building?

Based on the evidence, counsel could rationally conclude there was no benefit to pressing the issue before the jury. At the preliminary hearing she had argued defendant should not be held to answer on burglary because "There's no evidence that this was actually a building." Thus, we cannot assume she acted in ignorance of the issue. Her client chose to testify, something outside her control. (People v. Nakahara (2003) 30 Cal.4th 705, 717.) Defendant claimed to be an innocent bystander. Although arguing the structure did not qualify for a burglary charge would not contradict the defense, counsel could rationally conclude it would detract from it. A claim that "Defendant didn't steal and even if he did it wasn't from a house," is one most juries would look at with skepticism. Because the record does not preclude a plausible tactical reason for trial counsel's decision not to press the definitional point, the remedy, if any, lies in habeas corpus. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)