Criminal Law

1701. Burglary: Degrees

Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree.

First degree burglary is the burglary of an inhabited (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building).

A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.

[A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.]

[A (house/vessel/floating home/trailer coach/part of a building) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]

[A house includes any (structure/garage/office/ ) that is attached to the house and functionally connected with it.]

[A vessel includes ships of all kinds, steamboats, steamships, canal boats, barges, sailing vessels, and any structure intended to transport people or merchandise over water.]

[A floating home is a floating structure that:

(1) is intended to be used as a stationary waterborne residence;

(2) does not have its own mode of power;

(3) is dependent on a continuous utility link originating on shore;


(4) has a permanent continuous hookup to a sewage system on shore.]

[A trailer coach is a vehicle without its own mode of power, designed to be pulled by a motor vehicle. It is made for human habitation or human occupancy and for carrying property.]

[A trailer coach is also a park trailer that is intended for human habitation for recreational or seasonal use only and:

(1) has a floor area of no more than 400 square feet;

(2) is not more than 14 feet wide;

(3) is built on a single chassis;


(4) may only be transported on public highways with a permit.]

All other burglaries are second degree.

The People have the burden of proving beyond a reasonable doubt that the burglary was first degree burglary. If the People have not met this burden, you must find the defendant not guilty of first degree burglary.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction if there is evidence supporting first degree burglary.


Determination of Degrees. Pen. Code, § 460.

Floating Home Defined. Health & Saf. Code, § 18075.55(d).

Inhabitation Defined. Pen. Code, § 459.

Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.

Vessel Defined. Harb. & Nav. Code, § 21.

Room Within Inhabited House. People v. Sparks (2002) 28 Cal.4th 71, 86-87 [120 Cal.Rptr.2d 508, 47 P.3d 289].

House Not Inhabited if Former Residents Not Returning. People v. Cardona (1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 113-115.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10, Ch. 143, Crimes Against Property, § 143.10[1][b], [d] (Matthew Bender).

Related Issues

Dwelling Houses for Purposes of First Degree Burglary

A "house" has been broadly defined as "any structure which has walls on all sides and is covered by a roof." (People v. Wilson (1992) 11 Cal.App.4th 1483, 1487-1489 [15 Cal.Rptr.2d 77], citing People v. Buyle (1937) 22 Cal.App.2d 143, 148 [70 P.2d 955].) In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is "functionally interconnected with and immediately contiguous to other portions of the house." (People v. Ingram (1995) 40 Cal.App.4th 1397, 1404 [48 Cal.Rptr.2d 256], disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 559 [66 Cal.Rptr.2d 423, 941 P.2d 56]; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107, 1113 [92 Cal.Rptr.2d 236].) The following structures have each been held to be a dwelling house or part of a dwelling house for purposes of first degree burglary:

a. A hospital room to which a patient was assigned overnight. (People v. Fond (1999) 71 Cal.App.4th 127, 131-132 [83 Cal.Rptr.2d 660].)

b. An occupied hotel room. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 988 [217 Cal.Rptr. 612].)

c. A tent. (Wilson, supra, 11 Cal.App.4th at pp. 1487-1489.)

d. A common-area laundry room located under the same roof as and contiguous to occupied apartments. (People v. Woods (1998) 65 Cal.App.4th 345, 348-350 [75 Cal.Rptr.2d 917].)

e. An attached garage. (People v. Fox (1997) 58 Cal.App.4th 1041, 1046- 1047 [68 Cal.Rptr.2d 424]; People v. Moreno (1984) 158 Cal.App.3d 109, 112 [204 Cal.Rptr. 17].)

f. A home office sharing a common wall and roof with the living quarters. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107-1112 [92 Cal.Rptr.2d 236].)

g. A storeroom connected to a house by a breezeway. (People v. Coutu (1985) 171 Cal.App.3d 192, 193 [217 Cal.Rptr. 191].)

h. An unoccupied but occasionally used guest house. (People v. Hines (1989) 210 Cal.App.3d 945, 949-951 [259 Cal.Rptr. 128], disapproved of on other grounds in People v. Allen (1999) 21 Cal.4th 846, 862-866 [89 Cal.Rptr.2d 279, 984 P.2d 486].)

Mistake Concerning Residential Nature of Building

A reasonable but mistaken belief that a dwelling house is not inhabited is not a defense to first degree burglary. (People v. Parker (1985) 175 Cal.App.3d 818, 821-824 [223 Cal.Rptr. 284].) The Penal Code does not make knowledge that a "dwelling house" is "inhabited" an element of first degree burglary. (See Pen. Code, §§ 459, 460; People v. Guthrie (1983) 144 Cal.App.3d 832, 843-848 [193 Cal.Rptr. 54].)

(New January 2006)