Penal Code 460 PC – First Degree Residential Burglary in California

Updated November 4, 2020

Penal Code 460 PC is the California statute that defines residential burglary as burglary of an inhabited dwelling house, vessel, floating home, or trailer home. The law makes this form of burglary is a burglary of the first degree, while all other cases of burglary are of the second degree (such as burglary of a commercial structure). First-degree burglary is a felony offense in California.

According to Penal Code 459 PC, burglary itself is the act of entering any commercial or residential structure or locked vehicle with the intent to commit grand theft, petty theft or any felony once inside.

The language of PC 460 states that “(a) every burglary of an inhabited dwelling house, vessel…floating home…or trailer coach…or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree.”

The phrase inhabited dwelling house is defined broadly under California law and may include such things as:

• a person’s home
• a tent,
• a hospital room to which a patient is assigned overnight,
• an occupied hotel room,
• a common-area laundry room that is located under the same roof as occupied apartments, and
• an attached garage.

While first-degree burglary is a felony offense punishable by a state prison term, burglary in the second degree is a wobbler offense that can place a defendant in either state prison or county jail.

Our California criminal defense attorneys will explain the following in this article:

• 1. How does Penal Code 460 PC define a dwelling house?
• 2. Are buildings and attached structures considered to be dwellings?
• 3. When is a dwelling considered to be “inhabited”?
• 4. What are the penalties for first degree and second-degree burglary?

1. How does Penal Code 460 PC define a dwelling house?

California law provides a broad definition of the phrase, “dwelling house.”

The final determination of whether a structure is a dwelling depends on whether the facts of a case show that the “home” was being used as a residence.¹

“Used as a residence” means that the inhabitant of the dwelling has to be using it for sleeping and storage of his/her possessions.²

There is no requirement under the law that a dwelling has to be set on any type of foundation. A structure can amount to a dwelling house even if it is on wheels and not restricted to a specific location.³
For purposes of Penal Code 460, courts have considered the following structures dwelling homes under the law:

• a tent,⁴
• a RV,⁵ and
• an unoccupied but occasionally used guest house.⁶

Note that a structure does not fail to qualify as a dwelling simply because it is of poor condition. For example, an object can fit the description of a home if it consists of:

“a sheet stretched over poles and fastened to boards nailed to posts for sides, being closed at one end and having an old door at the other.”⁷

2. Are buildings and attached structures considered to be dwellings?

Buildings, structures attached to homes (e.g., a garage), and even rooms within a house or building can all be included within the definition of a “dwelling house.”⁸

This is true provided that the structure is inhabited, or being used for sleeping and storage.⁹

Further, there may be more than one dwelling under the same roof. This is the case with:

• apartments,
• condos, and
• hotels/motels.¹⁰

The following structures have been considered a dwelling house under the law:

• a hospital room to which a patient was assigned overnight,¹¹
• an occupied hotel room,¹²
• a common-area laundry room located under the same roof as an occupied apartment,¹³
• an attached garage,¹⁴
• a home office sharing a common wall and roof with the living quarters,¹⁵ and
• a storeroom connected to a house by a breezeway.¹⁶

3. When is a dwelling considered to be “inhabited”?

As stated above, a home is considered inhabited if a person is using it to sleep and store possessions.

For purposes of this statute, a dwelling is inhabited even if the person living in it is not present at the time of the alleged burglary.¹⁷

Further, something is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.¹⁸

A structure, though, is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.¹⁹

Also note that a defendant cannot avoid guilt under these laws by stating that he/she had a mistaken belief that a dwelling was not inhabited, even though it was.²⁰

Penal Code 460 does not make knowledge that a “dwelling house” is “inhabited” an element of first-degree burglary.²¹

4. What are the penalties for first-degree and second-degree burglary?

First-degree burglary is always charged as a felony under California law. The crime is punishable by up to six years in state prison.²²

Second-degree burglary is a wobbler offense. This means a prosecutor can charge it as either a:

• misdemeanor, or
• felony.

Misdemeanor second-degree burglary is punishable by custody in county jail for up to one year.

Felony second-degree burglary is punishable by imprisonment in county jail for up to three years.²³

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group.

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Legal References:

1. People v. Trevino (2016) 1 Cal.App.5^th 120. See also People v. Cruz (1996) 13 Cal.4th 764.
2. People v. Fleetwood (1985) 171 Cal.App.3d 982. See also People v. Trevino (2016) 1 Cal.App.5th 120.
3. People v. Cruz (1996) 13 Cal.4th 764.
4. People v. Wilson (1992) 11 Cal.App.4th 1483.
5. People v. Trevino (2016) 1 Cal.App.5th 120.
6. People v. Hines (1989) 210 Cal.App.3d 945.
7. Perkins, Criminal Law (3d ed. 1982) pp.255-256.  See also People v. Wilson (1992) 11 Cal.App.4th 1483.
8. See, for e.g., People v. Sparks (2002) 28 Cal.4th 71.
9. People v. Fleetwood (1985) 171 Cal.App.3d 982. See also People v. Ingram (1995) 40 Cal.App.4th 1397.
10. People v. Fleetwood (1985) 171 Cal.App.3d 982.
11. People v. Fond (1999) 71 Cal.App.4th 127.
12. People v. Fleetwood (1985) 171 Cal.App.3d 982.
13. People v. Woods (1998) 65 Cal.App.4th 345.
14. People v. Fox (1997) 58 Cal.App.4th 1041.
15. People v. Rodriguez (2000) 77 Cal.App.4th 1101.
16. People v. Coutu (1985) 171Cal.App.3d 192.
17. CALCRIM No. 1701 -Burglary: Degrees. Judicial Council of California Criminal Jury Instructions (2020 edition).
18. See same.
19. See same. See also People v. Cardona (1983) 142 Cal.App.3d 481.
20. People v. Parker (1985) 175 Cal.App.3d 818.
21. People v. Guthrie (1983) 144 Cal.App.3d 832.
22. California Penal Code 461 PC.
23. California Penal Code 1170h PC.