First Degree Burglary is committed upon the unauthorized entry to a residence with the intent to commit a theft or felony.

Standard Punishment

2, 4, or 6 years in state prison.

Relevant Statutes

Penal Code §459

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

Penal Code §460

(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.
(Amended by Stats. 1991, Ch. 942, Sec. 15.)

Penal Code §461

Burglary is punishable as follows:
(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.
(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 1700 and Calcrim 1701, which are summarized as follows

The defendant is charged with burglary.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant entered a building, room within a building, or locked vehicle or structure
2. When he entered, he intended to commit theft or one or more felonies.

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, trailer, vessel or a room within an inhabited house, trailer, or vessel.

A property is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.

A property includes any structure, garage, or office that is attached to the house and functionally connected with it.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a first degree burglary charge.

“[A] ‘building’ within the meaning of California’s burglary statute ‘is any structure which has walls on all sides and is covered by a roof.’”
Authority: Quoted language is from In re Amber S., 33 Cal. App. 4th 185 (1995).

“[I]n order for burglary to occur, ‘The entry must be without consent. If the possessor actually invites the defendant, or actively assists in the entrance, e.g., by opening a door, there is no burglary.’”
Authority: Exact quotation from People v. Thomas, 74 Cal. App. 3d 320, 323 (1977).

“An ‘inhabited dwelling house,’ as referenced in section 460, subdivision (a) [of the Penal Code] must be defined as a person’s actual place of abode. . . .”
Authority: Quoted language is from People v. Wilson, 11 Cal. App. 4th 1483, 1489, 15 Cal. Rptr. 2d 77, 80 (1992).

A dwelling “Defendant’s evidence established that he entered an apartment under a delusion that he owned that apartment and thus did not enter with the intent of committing a theft or felony. That evidence demonstrated that defendant lacked the specific intent required for a conviction of burglary.”
Authority: Exact quotation from People v. Wetmore, 22 Cal. 3d 318, 321(1978).

A building is not inhabited if the occupant is dead.
Authority: People v. Ramos, 52 Cal. App. 4th 300, 302 (1997).

“If you should find from the evidence that a burglary was committed on the premises involved in either of these cases and that thereafter the defendants were found in possession, or claimed to be the owners, of certain property stolen from the burglarized premises, such a fact would be a circumstance tending in some degree to show guilt, although not sufficient standing alone and unsupported by other evidence, to warrant your finding them guilty.”
Authority: Exact quotation from People v. Harris, 163 Cal. App. 2nd 470, 473-474 (1958).

The essence of the crime of burglary is the specific intent upon entry. If the defendant entered the building without intent to commit a crime, but thereafter formed the intent after his entry was complete, then the crime of burglary has not been committed and he is not guilty of that offense.
Authority: People v. Gibson, 107 Cal. App. 76 (1930).


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