Burglary

Burglary

Statute

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.

Penal Code & sect; 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.

Cases

"[C]ourts have explained that the term 'inhabited dwelling house' means a 'structure where people ordinarily live and which is currently being used for dwelling purposes.'" (People v. Cruz (1996) 13 Cal.4th 764, 776)

Factors relevant to determining whether a house is "inhabited" include whether the owner or occupant sleeps in the house, keeps personal belongings there, and intends to continue living there. (People v. Hughes (2002) 27 Cal.4th 287, 354-355; People v. Aguilar (2010) 181 Cal.App.4th 966, 971-972; People v. Hernandez (1992) 9 Cal.App.4th 438, 442.)

An "open house" showing by a real estate agent does not change an inhabited residence into a commercial residence. (People v. Little (2012) 206 Cal.App.4th 1364; People v. Tessman (Feb. 18, 2013, D062372) ___ Cal.4th ___ <http://www.courts.ca.gov/opinions/documents/D062372.PDF>.)

A burglary of a granny flat which is unoccupied, but attached to a main residence which is occupied, is a hot prowl. (People v. Harris (Feb. 25, 2013, No. E058521) ___ Cal.App.4th ___ <http://www.courts.ca.gov/opinions/documents/E058521.PDF>