Are buildings and attached structures considered to be dwellings?

Buildings, structures attached to homes (such as a garage), and even rooms within a house or building can all be included within the definition of a “dwelling house.” This is true provided that the structure is inhabited, or being used for sleeping and storage. Further, there may be more than one dwelling under the same roof. This is the case with: apartments, condos, and hotels/motels. The following structures have been considered a dwelling house under the law: a hospital room to which a patient was assigned overnight, an occupied hotel room, a common-area laundry room located under the same roof as an occupied apartment, an attached garage, a home office sharing a common wall and roof with the living quarters, and a storeroom connected to a house by a breezeway.

Penal Code § 460 PC - First Degree Residential Burglary

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

Q: 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. 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. 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.

Residential Burglary -- "Is it more serious than commercial burglary?" Penal Code 460 PC

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California Penal Code § 460 PC makes it a felony to commit residential burglary, which is entering any inhabited dwelling with the intent to commit grand theft, petty theft or a felony once inside. The penalties are two, four, or six years prison.

Graphic that shows examples of dwellings in residential burglary cases, including a home, occupied hotel room, or tent

Residential burglary is always prosecuted in California as burglary in the first degree. In contrast, burglary of a commercial structure or car is prosecuted as burglary in the second degree, which can be a felony or a misdemeanor.

The language of § 460 PC reads as follows:

(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, 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.

(c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.

In this article, our California criminal defense attorneys discuss the following topics re. residential burglary:

1. Dwelling Houses under 460 PC

A structure is a dwelling house in California if it is 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 their possessions.²

There is no requirement that a dwelling 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

In residential burglary cases, courts have considered the following to be dwelling homes:

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

Note that structures can be dwellings even if they are in poor condition. An example of such a dwelling includes:

“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

Masked burglar stealing cash from bed table while home occupant is sleeping in bed

First-degree burglary is a more serious crime than second-degree burglary.

2. Buildings and Attached Structures

Buildings, structures attached to homes (such as a garage), and even rooms within a house or building can all be “dwelling houses.”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 dwelling houses under California residential burglary 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

Man hiding behind couch while two burglars are in his living room in violation of 460 PC

First-degree residential burglary is a felony in California.

3. When is a dwelling inhabited?

Under California Penal Code 460, 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 of a natural or other disaster.¹⁸

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

Note that a defendant can be convicted of first-degree burglary even if they genuinely believed the “dwelling house” was uninhabited.²⁰ Believing that a dwelling is inhabited is not an element of Penal Code 460.²¹

4. Penalties

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

Meanwhile, second-degree burglary – which is burglary of a non-residence or automobile – is a wobbler. This means a prosecutor can charge it as either a misdemeanor or felony.

The following table outlines the punishments for first- and second-degree burglary in California.²³

Burglary Offense

California Sentence

1st-degree burglary:

Burglary of a residence

Felony: 2, 4, or 6 years prison

2nd-degree burglary:

Burglary of a non-residence (“commercial burglary”)
Auto-burglary

Misdemeanor: 1 year in jail

Felony: 16 months, 2 years, or 3 years in jail.

Additional Reading

For more in-depth information, refer to these scholarly articles:

From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
Burglary – Crime & Justice article giving an overview of burglary laws.
Reformation of Burglary – William & Mary Law Review article on how burglary laws have changed and can change.
Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.

Legal References:

People v. Trevino (2016) 1 Cal.App.5th 120. See also People v. Cruz (1996) 13 Cal.4th 764. California Penal Code 460 PC.
People v. Fleetwood (1985) 171 Cal.App.3d 982. See also People v. Trevino, supra.
People v. Cruz, supra.
People v. Wilson (1992) 11 Cal.App.4th 1483.
People v. Trevino, supra.
People v. Hines (1989) 210 Cal.App.3d 945.
Perkins, Criminal Law (3d ed. 1982) pp.255-256. See also People v. Wilson, supra.
See, for example, People v. Sparks (2002) 28 Cal.4th 71.
People v. Fleetwood, supra. See also People v. Ingram (1995) 40 Cal.App.4th 1397.
Same.
People v. Fond (1999) 71 Cal.App.4th 127.
People v. Fleetwood, supra.
People v. Woods (1998) 65 Cal.App.4th 345.
People v. Fox (1997) 58 Cal.App.4th 1041.
People v. Rodriguez (2000) 77 Cal.App.4th 1101.
People v. Coutu (1985) 171Cal.App.3d 192.
CALCRIM No. 1701 – Burglary: Degrees. Judicial Council of California Criminal Jury Instructions (2024 edition).
See same.
See same. See also People v. Cardona (1983) 142 Cal.App.3d 481.
People v. Guthrie (1983) 144 Cal.App.3d 832.
People v. Parker (1985) 175 Cal.App.3d 818
California Penal Code 461 PC. See People v. Pittman (Cal.App. 2024) 99 Cal. App. 5th 1252.
California Penal Code 1170h PC.

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Penal Code § 460 PC – First Degree Residential Burglary in California