California Burglary Laws

California Penal Codes 459, 466

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Defending against Burglary Charges

Burglary Charges

In California, there are different types of burglary charges that can be filed against a criminal defendant. Burglary charges are distinct from theft or robbery charges. The potential ramifications of a burglary conviction depend on the circumstances involved in the case and the degree of the crime as defined under state law.

First Degree Burglary

A first-degree burglary occurs when a person enters a structure with the intent to commit a crime. First-degree burglary is considered a felony and is often referred to as residential burglary. This crime involves entering an inhabited dwelling, which is defined much more broadly than being an apartment or house or other structure that is traditionally viewed as a place where someone may live.[1] Additionally, the term “inhabited” is more specifically defined.[2] While burglary is often considered a “breaking and entering” crime, breaking is not a requisite element of the crime in California. Here, a person can be charged with burglary even if a defendant walked through an unlocked door.

Burglary is a crime of specific intent. This means that the prosecutor must show that the defendant entered the dwelling or structure with the specific intent to commit a crime.[3] If the prosecutor cannot prove that the defendant intended to commit a crime after entering the structure, the defendant should not be found guilty of the crime.

Second Degree Burglary

When the structure is not defined under the Code, the charge is considered second-degree burglary.[4] Second-degree burglary is often charged when the crime is committed on commercial property. Second-degree burglary may be charged as either a felony or a misdemeanor.

Penalties for Burglary

The penalties for burglary are quite severe. For standard first-degree residential burglary when no aggravating factors are present include two, four or six years in state prison. Additionally, the defendant may face up to $10,000 in fines. Additionally, the defendant may be required to pay restitution to the victim. 

Second-degree burglary can be charged as a felony or as a misdemeanor, so the potential penalties vary based on the actual charge. For felony second-degree burglary, the potential punishments include 16 months, two years or three years in state prison and up to $10,000 in fines. Misdemeanor second-degree burglary charges can result in a year in county jail and up to $1,000 in fines. 

There are aggravating circumstances that increase the maximum penalties discussed above, including:

  • Three, five or seven additional years when explosives are used in the burglary
  • Three to six more years in state prison if great bodily injury was inflicted on the victim
  • One to two more years if the burglary was committed on a victim who was mentally disabled, blind, deaf, over 65 years of age, under 14 years of age, paraplegic or quadriplegic and the defendant knew of this vulnerable condition
  • Three more years in state prison for each violent felony the defendant has on his or her criminal record if a person was in the house when first degree burglary was committed.
  • One additional year if the defendant has committed any other felony within five years of the burglary conviction.

Similar Crimes

Burglary charges may be accompanied by additional charges depending on the circumstances. For example, if a burglar enters a dwelling and steals goods or services, he or she may face additional charges for grand theft.[5] Petty theft can be charged if the goods or services stolen are not valued as much.[6] In other instances, a person may have a right to be on the property but may still commit a crime such as in the situation of a store manager committing embezzlement.[7] If the defendant breaks into the property, he or she can be charged with trespassing.[8] If the defendant is in possession of burglary tools, he or she can be charged with this crime in addition the burglary charges.[9]

Legal Defenses

There may be a number of plausible defenses to burglary charges. One of the most effective defenses may be to show that the prosecution cannot show that the defendant met all of the elements of the crime. The prosecutor must show the following[10]:

  • The defendant entered a structure
  • With the intent to commit theft or a felony.

Regarding this first element, the prosecution must be able to show that the defendant actually entered the property.[11] If the prosecutor cannot show this element, a conviction cannot be made. A potential way to show that this element is not met is by presenting evidence that the defendant had consent to enter the dwelling or structure in question.

Regarding the second element, the prosecution must prove that the defendant had the intent to commit a felony or theft before he or she entered the property. If the defendant did not decide to commit a crime until he or she was already in the structure or building, a conviction for burglary is not appropriate. For example, if a person entered a store and then stole clothing, the prosecutor would have to show that the defendant entered the store with this intent. There is often a lack of evidence to show that the defendant had the requisite intent at the time of entering, which is the relevant timeframe in question.

Another possible defense that may be raised in a burglary case is a mistake of fact. This defense strategy tries to show that the defendant took something that he or she believed belonged to the defendant or was free to take. Even though he or she may have taken something that belonged to someone else, he or she did not have the requisite criminal intent if this is what occurred.

Other defenses may be available depending on the circumstances of the case. A criminal defense attorney well-versed in California criminal law and procedure can examine a case and determine if other defenses may be raised. He or she may be able to negotiate a plea agreement with the prosecutor, including lobbying for a misdemeanor charge only when second-degree burglary is charged.

Frequently Asked Questions (FAQ)

Does there have to be a victim present at the scene of a burglary?

Unlike robbery, which involves use of force or fear to obtain another person’s property, there is no requirement for the victim to be present at the scene during a burglary.

How long does the prosecution have to file charges?

The prosecution has up to a year to file misdemeanor burglary charges and a longer period of time to file felony charges.

What if I did not have any intention to committing a crime?

The lack of intent to commit a crime can serve as a defense to the charge of burglary but you may not be liable under a different theory such as trespass.


[1] California Penal Code Section 459 – Defines the inhabited structure as “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel . . . floating home . . ., 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 Section243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft . . .,or mine or any underground portion thereof.“

[2] California Penal Code Section 459 – 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 of a natural or other disaster caused the occupants to leave the premises.”

[3] California Penal Code Section 459 – When the defendant enters a property with the “intent to commit grand or petit larceny or any felony,” he or she is guilty of burglary.

[4] California Penal Code 460 – “Every burglary of an inhabited dwelling house, 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.”

[5] California Penal Code Section 487[2] – Grand theft charges can result when the defendant steals more than $950 of goods or services.

[6] California Penal Code Section 484[3] – Petty theft occurs when a defendant enters a structure and steals less than $950 in goods or services.

[7] California Penal Code Section 503[4] – Embezzlement occurs when a person in a trusted position steals money from the person who trusted them.

[8] See California Penal Code Section 602[6].

[9] California Penal Code Section 466 – Possession of burglary tools includes being in possession of “lock picks, crowbars, screwdrivers, master keys, spark plugs, a tin-foil lined purse, or any other tool or instrument with the intent of breaking into a building or vehicle.” This crime is considered a misdemeanor with the potential punishment of up to one year in jail, a fine and probation.

[10] See the Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1700.

[11] See California Penal Code Section 459 – Entering a building or structure includes when some part of the defendant’s body or some object under his or her control penetrates the area inside the building’s outer boundary.