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First-Degree Burglary

Penal Code 460 PC - First-Degree Residential Burglary Law

In the state of California, if you unlawfully enter someone's home, be it a house, apartment, rented room, RV, or even houseboat, to steal or commit a felony, you could be charged with a felony first-degree residential burglary under California Penal Code 460 PC.

The statute makes this form of burglary a first-degree felony offense, while all other forms are second-degree. One of them is burglary of a commercial structure, a wobbler that can be charged as either a misdemeanor or felony.

First-Degree Residential Burglary - Penal Code 460 PC
Penal Code 460 PC defines the crime of first-degree residential burglary and the penalties if convicted.

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

The intent to commit theft or a felony inside a residence has to be formed before someone enters the place. For example, if the defendant breaks into a home without intent to commit theft inside but decides to steal property after entry, they should not be charged with PC 460 first-degree residential burglary.

Once someone enters a residence with the intent to commit theft or enters the home with the intent to commit a felony within the residence, they have violated Penal Code 460 PC.

By law, any intrusion by force into a residence constitutes entering a place, no matter how slight. Further, even if a defendant didn't enter any part of their body into the home, a residential burglary could still have been committed if they used some object to enter the residence.

The state considers this the most severe form of burglary, punishable by up to six years in prison. In this article by our California criminal defense attorneys, we will take a closer look at this statute below.

What Constitutes First-Degree Residential Burglary?

First, it's essential to understand that California recognizes numerous forms and degrees of burglary. Under PC 459, burglary is defined as entering any public or private structure with the intent to commit theft or any felony once inside. Another form is the burglary of a safe under Penal Code 464 PC.

What Is First-Degree Residential Burglary in California?
A first-degree residential burglary is always a felony.

However, Penal Code 460 PC first-degree residential burglary specifically refers to unlawfully entering an "inhabited dwelling place" in this manner. PC 460 defines all other forms of burglary as "second-degree burglary." While lesser burglary offenses may be charged as misdemeanor or "wobbler" offenses, first-degree residential burglary is always charged as a felony.

Readers should note that no actual felony or theft needs to be committed in the home for the crime of first-degree burglary to be completed. In other words, the offense has been committed as long as the defendant intended to commit a theft or a felony inside the residence before entering the home.

For example, perhaps the defendant entered a residence intending to commit rape inside the home, but the woman was not home at the time.

Since they entered the residence intending to commit a felony crime of Penal Code 261 PC rape, it's considered a Penal Code 460 PC first-degree residential burglary, even though they never completed the intended crime.

What Constitutes an "Inhabited Dwelling Place?"

For a structure to qualify as an "inhabited dwelling place" under first-degree residential burglary laws, someone must live there—even if it's just temporarily or sporadically. A dwelling place is considered "inhabited" if someone sleeps or stores possessions there. 

Between California laws and the further interpretation of the courts in criminal trials, an "inhabited dwelling place" may be any of the following:

  • House,
  • Apartment,
  • Condo,
  • Guest house/pool house,
  • Occupied hotel room,
  • Occupied hospital room,
  • RV or trailer home,
  • Room extension (e.g., someone's guest room),
  • Houseboat,
  • Any other kind of vessel (if someone lives on it).

The courts also have a history of recognizing attached structures as "inhabited dwelling places"—for example, attached garages, home offices, and shared laundry rooms.

Nor does the inhabitant have to be presently living there for it to be considered first-degree residential burglary. For example, if someone temporarily vacates the premises due to a disaster or keeps the place as their seasonal home, it's still considered inhabited because the person intends to return.

What Are Some Examples?

Bill breaks into his neighbor's house with a plan to steal his game console—but the family dog scares him off. Although Bill failed in the theft, he is still guilty of first-degree residential burglary because he broke in with the intent to steal.

Intending to rob a jewelry store, John cuts a hole in the wall of the building next door and enters through it into the store's back room. Whether he made off with any merchandise, John has committed second-degree burglary (not first-degree) because the building was not an inhabited dwelling.

David sneaks into Jospehine's bedroom window at night, intending to scare her as a prank. While he may be charged with trespassing, David is not guilty of burglary because he had no intention of stealing or committing a crime.

What Are the Penalties for This Crime?

As with any crime, the specific penalties for first-degree residential burglary will depend on the unique circumstances of each case. But in general, this offense is always:

  • charged as a felony,
  • punishable by a maximum of six years in California state prison,
  • a maximum $10,000 fine, and
  • formal felony probation.

Residential burglary is considered a strike under California's three strikes law. This is a severe crime, but if there is a victim at home during the burglary, the crime is considered both a severe and violent crime.

A home burglary is considered a crime involving moral turpitude, which means “morally wrong,” and can carry harsh collateral consequences for non-U.S. citizens and licensed professionals.

What Are the Best Defenses for First-Degree Burglary?

Depending on the facts of your case, there may be several different ways to defend against first-degree residential burglary charges. Some common defenses are discussed below:

You had no intention of committing a crime or theft once inside the dwelling. For example, you were only there to retrieve your property.

The dwelling did not classify as an inhabited dwelling place. For example, it was vacant or up for sale. This argument is often used to downgrade a charge to second-degree burglary, which comes with lesser penalties.

Best Defenses for First-Degree Residential Burglary
Contact our criminal defense law firm for help.

You had permission to be on the property or in the dwelling. For example, you were given a key by the owner. There was no physical entry into the dwelling. For example, you only opened an unlocked door or window.

Interestingly, one factor that does NOT qualify as a valid defense is if you were unaware the dwelling was inhabited. With other crimes, prosecutors must prove that you knowingly violated the law, but in burglary cases, the intent to steal is already present.

So prosecutors may still convict you of a felony for breaking into an inhabited home, even if you believed the house was vacant.

Contact our criminal defense law firm to review the details and discuss legal options if you need additional information. Eisner Gorin LLP has two office locations in Los Angeles County, California. You can reach us by phone or using the contact form.

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