Burglary involves the entry of someone else's property with criminal intent. This is a serious charge in California and attracts serious penalties. It is vital to seek professional legal representation if you are facing such charges to fight charges of burglary. Please contact our theft crimes attorney at the California Criminal Lawyer Group for further details on how we can help you fight the charges.

Legal Definition of Burglary in California

Burglary in California is defined under Penal Code 459 as the entry of a room, structure, or a locked vehicle to commit a crime therein.

Therefore, the elements of the crime can be elaborated in the following way:

  • You entered a building, a room that is within a building, structure, or locked car

  • While entering the building, vehicle, or room, you had the intention to commit a crime, which can either be a felony, or theft, and

  • One or a few of the following three things happened:

    1. You stole a property that is worth more than $ 950 of its market value

    2. You did not enter a commercial establishment or,

    3. You entered a commercial establishment and entered it outside of its business hours

Please note, you are still guilty of burglary if you entered a building intending to commit a felony, grand theft, or petty theft. You do not have to succeed in committing the crime to be guilty of such a crime.

One of the significant controversies that arise from the above-stated explanation would be how the prosecutor proves the offender’s intent to commit a crime. Here are a couple of factors that the prosecutor can use.

Criminal Intent

The fact that you forcibly or illegally entered a building or room means that you had criminal intent. Therefore, even if nothing was stolen or no criminal activity took place, such instances do not disprove the fact that you committed burglary.


In most cases, defendants usually confess to the police or other people that they intended to enter a building or a room to steal or with a nefarious purpose. With such evidence, the prosecutor can easily charge you with burglary.

Circumstantial Evidence

The trail of actions that someone could have committed to enter a building proves beyond doubt that one had criminal intent. For instance, if a person pries on the door of a person and rifles through the owner’s property in search of something, this is evident beyond doubt that one had criminal intent.

Prior Evidence

Using previous criminal charges in a subsequent crime is greatly discouraged but can still prove criminal intent. If the defendant was previously arrested and prosecuted for burglary and continues to commit the same crime, this demonstrates that one had an unlawful purpose in the recent burglary offense. At this point, one should have the full knowledge about the consequences of burglary, hence could have restrained himself or herself.

Apart from how the prosecutor proves criminal intent in burglary charges, there are several other factors that one should learn. These aspects are as follows:

Definition of “Enter” in a Burglary Offense

The term “enter” is quite essential in proving California burglary charges. Under Penal Code 459, you are considered to have entered a building if part of your body or an object that you have control of penetrates a building or its outer boundary.

The outer boundary can include the balcony, window screen, or a higher floor of a building that is accessible from inside the building.

Difference between a First and Second-degree Burglary

First-degree burglary is any burglary that occurs in a residential building, while a second-degree burglary occurs in a building that does not fit to be a residence.

First-degree burglary is also referred to as residential burglary, while second-degree burglary is defined as commercial burglary.

Definition of Residential Burglary

A residential burglary occurs when one enters a building that another person resides in. Therefore, there must be proof that another person lives in the property or structure to be clear about this type of crime.

The kind of structures or buildings that count as residence include:

  • An inhabited home

  • An inhabited boat

  • A room an inhabited house

  • An inhabited floating home

  • An occupied motel room or hotel room

  • An occupied room inside any other type of building or structure

Please note, the house should not necessarily have someone dwelling in it to be considered as a residence. Therefore, there is no need to prove that the dweller was at home during the offense to establish this crime.

Definition of Commercial Burglary

This kind of burglary occurs in a store or business establishment. Therefore, the structure or building should specifically have a business running inside it to meet the requirements of commercial burglary. For one to be convicted with burglary, it does not matter whether you entered the commercial building during business hours or not to establish the charges at hand. Examples of commercial buildings include:

  • Shop

  • Warehouse

  • Store

  • Mill

  • Outhouse

  • Sealed cargo container

  • Aircraft

  • Ship

  • Barn

  • Stable

  • Mine

Comparison Between Burglary and Shoplifting

Shoplifting is defined under Penal Code 459.5 and is described as:

  • Entering a commercial establishment

  • While the retail establishment is operational or open during its business hours

  • To steal property worth more than $ 950 or less

In other words, shoplifting is a category of burglary but considers a defendant who enters a business or open store to steal merchandise worth $950 or less.

Comparison Between Burglary and “Breaking and Entering”

There is a difference between burglary and breaking and entering. For a California burglary to occur, one does not have to break into a property. One can commit burglary by simply entering a commercial or residential building through the window or open door.

The only exception that applies would probably be a burglary that involves a vehicle. In such an instance, you cannot get hold of something inside a locked vehicle until you break into it. This implies that one does not become guilty of auto burglary if he or she did not break into the car in question.

Penalties for Burglary in California

The penalties that apply in California burglary depends on whether you are charged with a first degree or second-degree burglary.

Penalties for California First-degree Burglary

Committing a residential or first-degree burglary in California is a felony. The kind of punishment that follows includes:

  • Formal or felony probation

  • Imprisonment in the California state prison for two years, four years or six years

  • A maximum fine of $10,000

  • Inclusion of “strike,” under California’s Three Strikes law

Penalties for California Second-degree Burglary

Second-degree burglary carries lesser charges compared to a first-degree. However, it is considered as a wobbler, meaning that it is chargeable as a misdemeanor or felony. If the case is charged as a misdemeanor, the potential penalties that apply are:

  • Imprisonment for a maximum of a year in county jail

  • Misdemeanor or summary probation

  • Fine that amounts to a maximum of $1,000

In a felony charge, the kinds of penalties that apply are:

  • Felony probation

  • Imprisonment in a county jail for sixteen months, two years, or three years

  • A maximum fine of $10,000

Summary or Misdemeanor Probation in California

Since there's a possibility of getting summary probation in your second-degree burglary charges, it would only be fair to learn a few aspects about this kind of probation.

Summary probation is an alternative sentence that allows offenders to serve their sentences outside the prison under court supervision. Summary probation usually lasts between one to three years, where the defendant has to comply with specific regulations provided by the court. If the defendant fails to comply with the conditions set forth, the judge might revoke the probation and send the offender back to jail.

When it comes to setting forth the summary probation conditions, the judge has significant discretion in determining these terms. The requirements that the judge impose on you depend on whether they can achieve justice and if they are logically related to the offense.

However, some of the common conditions that the judge might impose on you are:

  • Payment of all fines and restitution of all the damages that you have caused

  • Seek gainful employment

  • Compete community services

  • Participate in an individual or group therapy

  • Avoid violating any laws

Felony Probation in California Burglary Charges

Felony probation applies to an offender who is bound to serve a prison sentence in state prison. It allows the offender to spend between three to five years out of jail while considering various conditions imposed by the court. If you fail to follow through the conditions imposed on you, the court might revoke your probation and reinstate your prison sentence.

Common conditions in felony probation include:

  • Meetings with the probation officer, probably once a month

  • Restitution of your damages

  • Participation in an individual or group therapy

  • Submitting to police searches and seizure without a warrant

  • Compliance to an order of avoiding gang membership

  • Agreeing not to violate any laws

Other conditions can be imposed on you as long as the judge views them as logical and reasonable enough for your charges. This results from the significant discretion that they have when deciding on the conditions to impose on offenders.

Legal Defenses for Burglary

Hiring an attorney means that you should present an argument against the charges that are brought against you. These kinds of arguments are referred to as legal defenses. Several legal defenses can fit in a burglary case. Let’s have a look at a couple of the legal defenses that your attorney can use.

Lack of Intent

Having an intent is vital in supporting a burglary prosecution. If you do not have the purpose of committing a crime through your entry to a building, then the prosecutor cannot accuse you of committing burglary. Therefore, if you can prove that you had no intent for the accused criminal action, you can be charged with other offenses such as petty theft, which attracts lesser charges.

An example of a situation that defines lack of intent is when you enter a friend’s house, find his or her wallet lying idly on the floor, pick it up and take the $100 that you find inside. In such a situation, you will not be guilty of burglary, but you will be guilty of petty theft for stealing your friend’s money.

Factual Innocence

Maintaining that you did not do anything can be the simplest way to disapprove of your charges. It is common for innocent people to be arrested by mistake. This usually happens due to:

  • Mistaken identity

  • False accusation

  • Misleading evidence

A reliable attorney should bring enough and relevant evidence to prove that the facts provided by the prosecutor do not match with the circumstances of your charges. The attorney can use evidence such as video footage, witness statement, credit receipts, and other aspects to establish your whereabouts during the burglary.

Police Misconduct

Sometimes police are pressed to solve an issue and can go to the extent of violating regulations and violating the rights of the citizens. Some of the instances that explain police misconduct are:

  • Coercion or confession

  • Fabricating or planting evidence

  • Breaching of the Fourth Amendment rule related to searches and seizures

  • Asking questions that might lead a witness during a line-up

If an attorney suspects police misconduct in a burglary case, one can file a motion against the officer. The motion allows investigation on the officer to confirm whether similar allegations have been made on him or her.

Breach of Miranda Rights

One significant police misconduct that can work well as a legal defense is the breach of Miranda rights. Police officers are supposed to read your rights during arrest as required by the law. Failure to do so, this becomes a breach of your rights.

Please note, violation of the Miranda rights does not mean that your case will be dropped but simply means that the officer cannot use anything that you said as evidence.


Sometimes you might be pushed to commit a crime that you would not have committed. In such a case, you probably were blackmailed or coerced differently, leaving you with no other choice but to commit the crime. You must prove that you were entrapped into doing the misconduct to make this defense valid for your case.


Consent works when you argue that you had the authority to enter into the residence or commercial building and take the respective merchandise that you are accused of stealing. Otherwise, if the entry was unauthorized, this legal defense becomes invalid.


Another suitable legal defense that can work in a burglary charge is ownership. This implies that you owned the property that you are claimed to have stolen. This defense stands to be valid since there are no requirements to break into the residence or property that you took the property from for the charges to be valid.

Plea Bargain

A plea bargain works when you are petitioning for a lesser charge in place of another. In this case, you can make a plea for shoplifting or petty theft, which attracts lesser charges compared to burglary. Please note, you must be sure that all the circumstances surrounding the case can lead to actual sentencing, and the only way to handle the situation is through a plea bargain.


Intoxication does not stand as a reasonable defense but can work when the defendant proves that it occurred involuntarily. In such a case, you would probably have been drugged by someone, leading to your burglary misconduct. Therefore, the court will reason that you were not in the capacity to reason due to your involuntary intoxicated state.

Crimes Related to Burglary in California

Several crimes are related to California burglary. These crimes are either convicted together with burglary or have similar penalties. Let’s have a closer look at these crimes.

Possession of Burglary Tools: Penal Code 466

Under Penal Code 466, it is illegal to possess burglary tools to use them to commit a burglary. It is also unlawful to alter the key of a building without the consent of the person in charge.

Examples of some of the burglary tools that included in this offense are:

  • Pliers

  • Slim jims

  • Screwdriver

  • Crowbars

If you are arrested in possession of the above-stated tools, you can end up getting charged with both burglary and possession of burglary tools. Possession of burglary tools is a misdemeanor in California and carries a maximum jail sentence in county jail.

Forgery: Penal Code 470

Under Penal Code 470, forgery is defined as altering, creating, or using a document to defraud someone else. A forgery charge is considered burglary but is wobbler under California laws.

For a misdemeanor charge, the potential consequences that might follow are:

  • A fine that can reach up to $1,000

  • Misdemeanor or summary probation

  • County jail custody for a maximum of a year

If you get charged with a felony, the kind of penalties that follow are:

  • A fine that can reach up to $10,000

  • County jail imprisonment for a maximum of three years

  • Formal or felony probation

Robbery: Penal Code 211

Under Penal Code 211, robbery is the action of taking another person’s property in his or her presence, by force or imposing fear.

One can end up being charged with robbery if:

  • You enter a structure belonging to someone else

  • While inside the structure, you use fear, intimidation or force to obtain merchandise from another person, and

  • You had the intention to do so while entering the premises

Robbery is a felony in California and is punishable by imprisonment in California state prison for two to five years.

Trespass: Penal Code 602

Under Penal Code 602, an intrusion is the entry of another person’s property without the right to do so. It might appear that the entry onto someone else's property during a burglary to be a trespass, but in this case, the sole focus is the consent to enter someone’s property with or without permission.

On the other hand, burglary focuses on the intent to commit a felony, hence the difference between the two. This does not matter whether you had consent to enter into the property or not.

If you face charges under Penal Code 602, the court might charge you with a misdemeanor, which can sometimes turn out to be an infraction. It can also be filed as aggravated trespass under PC 601 if you enter the property within thirty days of threatening the occupants of the property.

If charged with an infraction, it means that you entered the property without permission, and there was no meaningful barrier preventing your entry. The possible penalties would be:

  • $75 fine for a first offense

  • $259 fine for a second-time offense

A third-time offense would turn the offense to misdemeanor trespass.

If you face trespass misdemeanor charges, the possible penalties that would follow are:

  • Summary or misdemeanor probation

  • Imprisonment in a county jail for a maximum of six months

  • A maximum fine of $1,000

Burglary of a Vault or Safe or Burglary with Explosives: Penal Code 464

Under Penal Code 464, burglary of a vault or safe is charged when one uses explosives, acetylene devices, or any other device to open a vault, safe or any other secure place, while committing a burglary.

This is a felony regardless of whether the target property is a residential or commercial type. The possible punishment that applies in this kind of violation is imprisonment in California state prison for three years, five years, or seven years.

Find a California Criminal Lawyer Group Near Me

Facing burglary charges in California is not as easy as it seems. It requires someone with substantial legal knowledge to follow through and handle every aspect related to such a case. This is not achievable unless one involves a professional criminal defense attorney. You deserve to get experienced and competent attorneys to be successful with your case. Our attorneys at the California Criminal Lawyer Group are experienced criminal defense attorneys who can represent you if you are charged with burglary or related theft crimes. Contact us at 408-622-0204 today for more information.