CALCRIM No. 1701. Burglary: Degrees
Judicial Council of California Criminal Jury Instructions (2017 edition)Download PDF
1701.Burglary: Degrees (Pen. Code, § 460)
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
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
[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.
New January 2006
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.
• Deﬁnition of “Inhabited” Properly Excludes Word “Currently.” People v.
Meredith (2009) 174 Cal.App.4th 1257, 1264–1265 [95 Cal.Rptr.3d 297].
• 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].
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[b],
[d] (Matthew Bender).
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
CALCRIM No. 1701 BURGLARY AND RECEIVING STOLEN PROPERTY
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
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
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
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
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1701
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