There are a lot of misconceptions about the burglary offense in California. Many people confuse this offense to mean either theft or robbery. However, the California law treats all these offenses separately. In most burglary cases, the prosecution must have gathered enough evidence to incriminate you for such a crime. Therefore, you need the help of an experienced attorney when you are facing burglary charges or any related offenses. If you are in Los Angeles, we invite you to contact the LA Criminal Defense Attorney to help in your defense.

What is Burglary?

Penal Code 459 PC defines burglary as the illegal breaking, entering and remaining in another person’s property with the intention of committing a felony or theft.

Burglary can be divided into two distinct forms, the first degree and second-degree burglary. A first-degree burglary, otherwise known as a home invasion or residential burglary, occurs when a suspect illegally breaks into another person’s apartment, hotel room, or house where they permanently or temporarily stay with an intent to commit felony or theft.

The second-degree burglary is further divided into an auto-burglary or commercial burglary. The auto burglary occurs when a suspect attempts to break into a car, or any automotive with the aim of committing a felony or theft. Entering an open car does not qualify as an auto second degree burglary, you must have attempted to break into the car for such charges to be pressed against you. This is a wobbler offense, and suspects are either charged with a felony or a misdemeanor. On the other hand, commercial burglary is charged once you attempt to break into a commercial building like a supermarket, business premise or mall with an intention to commit a theft or felony.

Elements of Burglary

Several aspects of burglary have changed in the modern day laws of California. Some of these elements include:

  1. Breaking: This is a broad and ambiguous burglary feature that requires proper elaboration. According to the traditional common law, one was charged with burglary if they broke into a building with intent to steal. However, the law nowadays doesn’t require you to have broken into a premise to qualify as a burglary suspect. Just being unlawfully present in a premise qualifies as a burglary offense. If you even accidentally extend the opening of an already opened door or window, that is also considered as burglary;

  2. Entry: According to the California law, an entry must not be forceful. As long as a specific part of your body is inside a building or premise, and it is proven that you intended to commit theft or felony, it qualifies as a burglary offense. Even the use of tools to access a building illegally is enough evidence to constitute burglary;

  3. Night time entry vs modern law: According to the old common law, only night-time intruders were charged with burglary. However, the current California law treats all forms of forced entry regardless of the time as burglary;

  4. Dwelling: The Common law treated the dwelling as the permanent home of a victim, just the home. However, the current California law is not limited to only the permanent residency. Provided a person has ownership of the particular target spot, that is burglary. Some of the added burglary spots today include stores, houseboats, cars, locked vehicles, railroad cars, apartments, hotel rooms and many more;

  5. Intent to commit the crime: For you to be charged with a burglary offense, the prosecution has to determine that you had a plan of felony or theft, once you accessed a property unlawfully. One is not convicted for burglary if h/she mistakenly accesses a property. You can either be drunk or lost direction. For the prosecution to prove that you had an intent to commit burglary, you must be carrying common burglary tools like pliers, screwdrivers, hack saw etc. Another incriminating evidence would be a recording or CCTV footage that carries the actual turn of events.

Penalties for Burglary

As earlier alluded, burglary is subdivided into two forms, the first degree and second-degree burglary. Burglary is a wobbler; hence, it can either be a felony or misdemeanor depending on the intensity of the case, and the defense presented. The two forms of burglary attract different forms of penalties as outlined below:

Penalties for the first-degree burglary

For you to be charged with this offense, you must have attempted to access the resident of another individual without their consent. Whether a permanent or temporary residence, any intrusion is a first-degree burglary. This is a serious offense in California and is mostly treated as a “serious felony”. A residential burglary can attract a prison term of up to 6 years. In case a minor or an elderly occupied the residence during the raid, the term can be increased by up to 1 year.

Standard penalties for the first-degree burglary include:

  • A felony probation ruling

  • A sentence of two, four or six years in state prison

  • Restitution of all the stolen property

  • A ten thousand dollars ($10000) fine or a combination of all the punishments

Besides, a first-degree burglary is treated as a strike offense under the California three strike law.

Penalties for the second-degree burglary

This is mostly divided into auto or commercial burglary. These offenses carry lighter charges compared to the first-degree burglary.

  1. Second-degree commercial burglary charges: For an offense to qualify as second-degree burglary, one must have attempted to access a commercial premise with an intent to commit theft or felony. Mostly, one is culpable of prosecution if the court determines that their intention of accessing the business premise was to steal merchandise. If the value of the stolen property is below $950, that is not a commercial burglary. Instead, it is treated as a misdemeanor crime of shoplifting. However, if the value exceeds $950, then the prosecution files a commercial burglary offense;

  2. Second-degree auto burglary: A second-degree auto burglary involves motor vehicles. If you access an automotive with an intent to steal it (grand theft auto) or some of its items, then you are charged with auto burglary. The prosecution proves your intentions by either finding you with theft tools or master keys to the vehicle.

Contact Us Today for Immediate Assistance!

Penalties for the Auto and Commercial Burglary

Second-degree burglary is treated as a wobbler. In the California law, a wobbler is charged as either a misdemeanor or a felony, depending on the prosecutor’s discretion. Some of the possible consequences if taken as a felony may include:

  • Felony probation

  • An imprisonment of 16 months, two or three years

  • A fine of ten thousand dollars ($10000), or a combination of all the above penalties.

As a misdemeanor the following penalties are passed:

  • Misdemeanor probation

  • A jail term of up to a year in county jail

  • A maximum fine of ten thousand ($10,000) dollars

Note that the court can decide to combine all the penalties above in some cases depending on the case intensity and the suspect’s criminal record.

Common Burglary Defenses

Being arrested for a burglary offense doesn’t automatically guarantee a conviction. The prosecution has to prove beyond reasonable doubt that you had the intentions of theft or felony when you unlawfully forced entry into another person’s property. This is very difficult to determine if you didn’t have any burglary tools during the intrusion. The case becomes even tighter the moment you seek the services of excellent defense attorneys. Some of the most common defenses used in case of a burglary prosecution include:

Failure to fully dictate the Miranda rights

Everyone has the right to Miranda warnings during an arrest. The police inform a suspect of their Miranda rights. You can decide to talk, and all your statements can be used as evidence against you in a court of law, or remain silent and let investigations continue. If the arresting officer fails to give these guidelines, then your defense team can dismiss all the evidence on this basis. According to the “fruit of the poisonous tree” doctrine, all the evidence provided after improper questioning is not tenable before a court of law. However, to prove that the Miranda rights were not read, you require an Attorney with significant expertise in the burglary offenses. The Attorney files all the appropriate motions on your behalf to help suppress all the evidence you gave the arresting officers.

Illegal seizure or searches

According to the Fourth Amendment to the US constitution, all citizens should be protected from any unlawful search or seizure. Additionally, the “fruit of the poisonous tree” as well highlights the flaws of illegally searching a suspect’s house. With such laws in place, all police officers should have a search warrant before accessing your property. All evidence collected in violation of this law is not admissible in the courts. The biggest hurdle comes in determining that the officer breached the Fourth Amendment. You require tangible evidence like live recordings or CCTV footages to make such weighty allegations. You will also need the advice of a professional burglary attorney. The Attorney helps you determine the relevance of this defense to your case and also fully represents your views and evidence before the courts. You have to be very sure that the police searched your home without showing an authorized search warrant.

An Alibi defense

Alibi is the legal term used to prove that you were in another location during the crime. This is one of the most common burglary defenses in California. Your defense Attorney should prove your absence from the crime scene. He can either rely on other people’s evidence or CCTV footages obtained from the scene. For another person to provide such evidence, h/she has to be bound by an oath. If the judge is satisfied, then an Alibis defense ascertains your release. However, you require the services of professional Attorneys, and the best bet comes from LA criminal defense Attorneys.

Lack of intent

Under the California Law, a case becomes a burglary once the prosecution proves that the suspect had the intentions of breaking into a property to commit a theft or felony. If you accessed a location without these intentions, then your case is not a burglary offense. Most of the times prosecutors base their case on the fact that you possess burglary tools like hacksaws and pliers, and with such evidence, it becomes hard to prove otherwise. However, your defense can apply several tricks to contest the element of intent. They can choose to determine that you were intoxicated during the invasion. If you hire professional Attorneys to present such a defense articulately, then you can be sure of your release.

Consented entry

If you were allowed to be in the premise, then you don’t have a case to answer. But first, you require to prove beyond reasonable doubt that you were authorized to be around the crime spot. This is, in fact, the most straightforward defense for a burglary offense. Some of the two common defenses in such a situation can include:

  • Determining that you are the actual owner of the property.

  • Prove that the property’s owner invited you over, with full knowledge of your criminal and illegal intentions.

These are among the few defenses that can guarantee your release in a burglary case. You need to be sincere with your Attorney to help them identify a weak point in your case prosecution, then h/she will immediately choose a line to follow in your case.

Offenses Related To Burglary

Some of the crimes that are closely associated with burglary include:

Possession of burglary tools under the penal code 466 PC

Under this penal code, it is illegal to possess any burglary tools with the intention of using them to commit felony or theft. Under the same penal code, it is unlawful to alter or damage the keys or locks of any property without the owner’s consent. Some of the common burglary tools under the Laws of California include slim jims, crowbars, screwdrivers and pliers. If you are caught with any of these tools during a burglary arrest, you are eligible to charges under both the Penal code 459 and 466, and this increases your penalties. Possession of burglary tools is treated as a misdemeanor and attracts a jail term of up to 6 months in county jail.


This occurs under the Penal code 470 PC and is defined as knowingly creating, using or altering any written document with the intention of defrauding unsuspecting victims. According to most people, burglary involves breaking into a premise by force to steal something tangible. However, entering a bank or a store with an intention to commit forgery by creating or cashing a forged check, is also a form of burglary. In most cases, forgery is treated as a wobbler and can either be a misdemeanor or a felony depending on the defense.


Comes under the penal code 211 PC of California. This is forcefully taking another person’s property in their immediate presence. In most cases, suspects are charged with both robbery and burglary if:

  • H/she forcefully enters a premise, structure or building belonging to another person.

  • Once you get full access of the premise, you use force, intimidation and fear to obtain the property in the premise.

  • You had the intention to commit both offenses once you accessed the premise.

According to California law, Robbery is always treated as a felony and can attract a sentence of up to five years in state prison.


Under the penal code 602 PC, trespass is defined as the illegal entry to another person’s property. The burglary law focuses on your state of mind during the illegal entry. On the other hand, the trespassing code focuses on the fact that the other party consented your presence in their property. In most cases, trespass is treated as a misdemeanor and in some cases can even be an infraction. Intelligent defense lawyers even use the trespassing code 602 to reduce the intensity of charges to their client. However, the trespass can be treated as a felony. Under the penal code 601 PC, entrance into a property within the first 30 days of threatening the owner’s safety, that automatically becomes an “aggravated trespass”, and the charges are very severe.

Safe or vault burglary or burglary with explosives

The offense is treated under the penal code 464 PC. It is charged on individuals who use acetylene torches, explosives and similar devices to access your vault, safe and any other secured spots during a burglary. This is one of the most severe burglary associates and qualifies to be a felony regardless of the target. Felony charges are very severe even to the future reputation of the convict. Some of the probable punishments under this offense include three, five and seven years imprisonment in state prison.

Frequently Asked Questions on Burglary

What is a residence under the California’s first-degree burglary law?

A residence includes any of the following:

  • An inhabited house and the rooms within

  • An inhabited room or floating home

  • An inhabited trailer coach

  • An inhabited apartment, hotel or motel room

In this case, an inhabited place is any place used by a person for dwelling purposes. The person must not be presently available, but provided that is where they dwell, it becomes their residence. However, if a person leaves the place and doesn’t intend to return, it ceases to be considered as inhabited.

Can I reduce my burglary conviction under the PC 459 to a shoplifting offense?

Yes. A proposition 47 of 2014 allows convicts of burglary to apply for a review of the ruling to shoplifting. If the application proceeds, you permanently remove all the felony charges from your records. And as such, you are safe from all the limitations that come with such bad records. However, for this re-sentencing to be successful, you require the services of criminal lawyers who are conversant with the resentencing proposition provision 47 and the penal code 459 PC.

This is the similar case applied to most theft-related crimes such as grand theft.

Is there a similarity between Burglary and “entering and breaking” under the California law?

There is a vast difference between the two terms. Under the burglary law, one does not necessarily have to break into a property to be charged with burglary. However, merely entering a property or structure through a partially open window or door, automatically qualifies to be a burglary. On the second degree burglary, one can be charged for entering an open business with the intention of committing a theft or felony.

What is the main difference between commercial burglary under PC 459 and shoplifting?

An offense is considered as shoplifting is a suspect enters a shop or business premise within the regular working hours and steals property whose value is below $950. On the other hand, commercial burglary is the unlawful entry into a business premise regardless of the time with an intention to commit theft or felony.

What is the meaning of “entering” a structure under the penal code 459 PC?

The word “entering” forms the basis of all burglary offenses under the laws of California. Under the penal code 459 PC of California, entering means that a part of your body or an object that you are controlling illegally penetrates a structure or building. Therefore, anyone who comes closer to a structure such that a part of them is inside, is guilty of burglary.