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VOLUME 7 - CHAPTER 78
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78.3 Burglary: Defenses And Defense Theories

    78.3.2 Burglary: Structure Was Not Inhabited

    78.3.2.1 Burglary: Dwelling Is Not Inhabited If Residents Have Moved Out With No Intent To Return
    78.3.2.2 Burglary: Definition Of Dwelling House: Portion Used As Business
    78.3.2.3 Burglary: Inhabited Dwelling: "For Dwelling Purposes" Requires Use As Sleeping And Living Quarters
    78.3.2.4 Burglary: Inhabited Dwelling Defined: Occupant Must Be Alive
    78.3.2.5 Burglary: Tent Is Inhabited Dwelling

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RATIONALE: Without an explanatory instruction the jury may not correctly understand the definition of "inhabited dwelling."

POINTS AND AUTHORITIES: In defining an inhabited dwelling for the purposes of burglary, courts have not required that occupants actually be present, but the current occupants of the dwelling must intend to continue living there in order for the dwelling to remain "inhabited" during the occupants' temporary absence. (See e.g., People v. Jones (CA 1988) 199 CA3d 543, 548 [245 CR 85].)

    For example, in People v. Cardona (CA 1983) 142 CA3d 481 [191 CR 109], the court held that the house was not inhabited after the tenants moved out intending never to return, even though the term of their tenancy had not yet expired and they had not completed moving all their belongings out of the house. "Where ... the residents have moved out without the intent to return, the house becomes uninhabited, i.e., it is no longer being used for dwelling purposes." (Id. at 482-84; see also People v. Guthrie (CA 1983) 144 CA3d 832, 838 [193 CR 54]; State v. Surtain (LA 1988) 529 So2d 1375; People v. Sheirod (NY 1987) 510 NYS2d 945, 947; LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.13(c); Wharton’s Criminal Law (West, 15th ed. 1993) § 325-326.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Annotation, Occupant's Absence From Residential Structure As Affecting Nature Of Offense As Burglary Or Breaking And Entering, 20 ALR4th 349.

What Is "Building" or "House" Within Burglary or Breaking and Entering Statutes, 68 A.L.R.4th 425.

See also generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

    In deciding whether a dwelling house is inhabited it is the present use rather than past or future intended use which is determinative. It is the intent and not the length of the absence that controls.

    A dwelling house may be currently used for dwelling purposes even though the occupants are temporarily absent so long as any of such occupants intend, at the time of the alleged burglary, to reoccupy it for dwelling purposes within a short period of time.

    Just because the structure serves the purpose of a dwelling does not make the dwelling inhabited; it is necessary that someone be currently using this structure as a dwelling at the time of the break-in.

[See People v. Hernandez (CA 1992) 9 CA4th 438, 441-42 [11 CR2d 739].]

    In deciding whether the structure was inhabited consider all the circumstances, including factors such as the following:

    (1)    Whether the structure was adapted for human occupancy at the time of the alleged burglary (e.g., whether it was furnished and necessary utilities were connected); 

    (2)     The intent of the owner to return; and 

    (3)     Whether, on the date of the alleged burglary, a person could have occupied the structure overnight. 

[Cf.  Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 16:01 [Burglary-Nature And Definition Of Offense] (West, 1999).]

    A building is not a dwelling unless a person resides in it or a person who did reside in it left with the intent to return and continue to reside in the building.  The mere fact that a person could live in a building does not make it a dwelling. 

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS III(B) inst. 6, ¶ 6 [Burglary-Definition] p. 180 (South Carolina CLE, 1994).]

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PRACTICE NOTE: A structure may be considered  a dwelling house even if a portion of it is used for business purposes. (See Wharton’s Criminal Law (West, 15th ed. 1993) § 325, p. 256.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 78

RATIONALE: In some circumstances it may be necessary to further specify what is meant by the term "for dwelling purposes."

POINTS AND AUTHORITIES: If there is a concern that the jury might not understand the term "for dwelling purposes," the term has been more specifically defined as a building "used as sleeping and living quarters." (See e.g., People v. Marquez (CA 1983) 143 CA3d 797, 800 [192 CR 193]; but see People v. Wilson (CA 1992)11 CA4th 1483,1487-89 [15 CR2d 77] [tent is "dwelling house" if used for sleeping and storage purposes].)

    "Residence" and "dwelling house" are equivalent terms. (People v. Harrell (CA 1989) 207 CA3d 1439, 1446 [255 CR 750].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 78

    78.3.2.4    Burglary: Inhabited Dwelling Defined -- Occupant Must Be Alive

PRACTICE NOTE: In California, a dwelling is not inhabited if the dwelling has been left unoccupied by the occupant's death. "[A] dead body is not using a house for a 'dwelling'...." (People v. Ramos (CA 1997) 52 CA4th 300, 302 [60 CR2d 523].)

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 78

PRACTICE NOTE: In People v. Wilson (CA 1992) 11 CA4th 1483, 1487-89 [15 CR2d 77], the court held that a tent, if it has four sides and a roof and is used for sleeping and storage of possessions, is a "dwelling house."

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].