What Is Burglary in California?
Burglary under California Penal Code 459 is the act of entering a building or other structure with the intent to commit a felony or theft once inside. Contrary to popular belief, burglary does not require breaking in, stealing anything, or entering at night. The crime is complete the moment you enter a structure with criminal intent. California distinguishes between first degree burglary (residential) and second degree burglary (commercial), with dramatically different consequences for each.
If you are facing burglary charges in San Jose, San Francisco, Oakland, Gilroy, Morgan Hill, or anywhere in Santa Clara County, the attorneys at RV Litigation Group PC will challenge the prosecution's evidence and fight to protect your future. Burglary cases often turn on the question of intent, which is one of the most difficult elements for the prosecution to prove.
What the Law Says
Penal Code 459 — Burglary Defined
"Every person who enters 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... inhabited camper... vehicle... when the doors are locked, aircraft... mine or any underground portion thereof, with intent to commit grand or petit larceny, or any felony, is guilty of burglary." — California Penal Code Section 459
The statute is remarkably broad. Almost any enclosed structure qualifies. The critical element is intent at the time of entry. The prosecution must prove that at the moment you crossed the threshold, you intended to commit theft or another felony inside. If you formed criminal intent only after entering — for example, you entered a store as a customer and then decided to steal — that is not burglary under California law (though it may be shoplifting or theft).
Penal Code 460 — Degrees of Burglary
"(a) Every burglary of an inhabited dwelling house, vessel... floating home... trailer coach... 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." — California Penal Code Section 460
First degree burglary — residential burglary — is always a felony and always a strike. An "inhabited" dwelling means someone currently lives there, even if no one is home at the time of the burglary. Second degree burglary — commercial burglary — is a wobbler offense. As a felony, it carries 16 months, 2, or 3 years. As a misdemeanor, it carries up to 1 year in county jail. The degree of the charge has enormous consequences for sentencing and your permanent record.
Real-World Examples
These scenarios illustrate how burglary charges commonly arise in the Bay Area:
A man watches a family in San Jose leave their home for vacation. He enters through an unlocked rear window and takes electronics and jewelry. Even though he did not "break in" (the window was unlocked), he entered an inhabited dwelling with the intent to steal. This is first degree burglary — a felony carrying 2, 4, or 6 years in state prison and a strike on his record.
A woman enters a clothing store at Eastridge Mall in San Jose after hours by slipping in through a loading dock. She takes merchandise worth $2,000. Because the structure is a commercial establishment (not an inhabited dwelling), this is second degree burglary. However, because the value exceeds $950 and she entered outside business hours, it is likely charged as a felony.
A man enters a convenience store in Morgan Hill during regular business hours and conceals a $15 item in his jacket. Under Proposition 47, entering a commercial establishment during business hours with intent to steal $950 or less is shoplifting (PC 459.5) — a misdemeanor — not burglary. The distinction between shoplifting and burglary depends on the time of entry, type of establishment, and value of goods.
A woman enters a friend's apartment in Oakland to hang out. During her visit, she sees an expensive watch on the counter and decides to pocket it. Although she committed theft, she did not enter with the intent to steal. This is not burglary — it is theft. The distinction matters enormously because burglary of a residence is a strike, while theft may be a misdemeanor.
Penalties
Burglary penalties vary dramatically depending on whether the charge is first or second degree and whether it is filed as a felony or misdemeanor.
| Charge | Classification | Prison / Jail | Fine |
|---|---|---|---|
| First Degree Burglary (Residential) | Felony (Strike) | 2, 4, or 6 years state prison | Up to $10,000 |
| Second Degree Burglary (Felony) | Felony | 16 months, 2, or 3 years | Up to $10,000 |
| Second Degree Burglary (Misdemeanor) | Misdemeanor | Up to 1 year county jail | Up to $1,000 |
| Shoplifting (PC 459.5) | Misdemeanor | Up to 6 months county jail | Up to $1,000 |
| With Person Present (PC 667.5(c)) | Violent Felony | Enhanced sentencing | Strike offense |
Additional consequences: First degree burglary is a strike under California's Three Strikes law. Any burglary conviction can result in loss of firearm rights, immigration consequences (deportation for non-citizens), difficulty obtaining employment and housing, loss of professional licenses, and a permanent criminal record. Burglary of an inhabited dwelling where someone is present at the time may be classified as a violent felony with enhanced sentencing.
Legal Defenses
Burglary charges hinge on the prosecution proving criminal intent at the moment of entry. Here are the defenses our attorneys commonly use:
1. No Intent to Commit a Crime at Entry
The most powerful burglary defense challenges the intent element. If you entered a structure without the intent to commit theft or another felony, you are not guilty of burglary — even if you later committed a crime inside. For example, if you entered a store as a legitimate customer and then impulsively took something, that is theft or shoplifting, not burglary. We present evidence of your legitimate purpose for entering the structure.
2. Consent to Enter
If you had permission to be in the structure, the prosecution's case becomes much harder to prove. This defense often arises in cases involving shared residences, invited guests, or employees. If the property owner or occupant invited you inside, or you had a standing invitation or key, we present evidence of that consent to challenge the burglary charge.
3. Mistaken Identity
Residential burglaries frequently rely on circumstantial evidence — fingerprints, surveillance footage, or witness descriptions. These forms of evidence are not always reliable. We challenge the identification evidence, analyze surveillance footage for inconsistencies, question fingerprint analysis, and present alibi evidence to establish that you were not the person who entered the structure.
4. Claim of Right
If you entered a structure to retrieve property you genuinely believed was yours, you lacked the intent to steal. The claim of right defense applies when you had a good-faith belief that the property inside belonged to you, even if that belief was legally incorrect. We present evidence establishing your honest belief of ownership.
5. Factual Innocence / Insufficient Evidence
The prosecution must prove every element of burglary beyond a reasonable doubt. We scrutinize every piece of evidence — forensic reports, witness statements, surveillance footage, cell phone records — and challenge anything that is unreliable or does not support the charge. If the evidence is insufficient, we fight for dismissal or acquittal.
Frequently Asked Questions
First degree burglary (residential burglary) involves entering an inhabited dwelling — a house, apartment, hotel room, or any structure where someone lives. It is always a felony. Second degree burglary (commercial burglary) involves entering any other type of structure — a store, office, warehouse, or other non-residential building. Second degree burglary is a wobbler that can be charged as a misdemeanor or felony.
First degree burglary carries 2, 4, or 6 years in state prison and is a strike under the Three Strikes law. Second degree burglary as a felony carries 16 months, 2, or 3 years in state prison or county jail. As a misdemeanor, second degree burglary carries up to 1 year in county jail.
First degree (residential) burglary is a strike under California's Three Strikes law because it is classified as a serious and violent felony. Second degree (commercial) burglary is generally not a strike offense, though it can still carry significant prison time as a felony.
Yes. Burglary does not require that a theft actually be completed. The crime is entering a structure with the intent to commit a felony or theft inside. If the prosecution can prove you entered with criminal intent, you can be convicted of burglary even if you were caught before taking anything or if you changed your mind after entering.
Under Proposition 47, shoplifting (PC 459.5) is entering a commercial establishment during regular business hours with the intent to steal merchandise worth $950 or less. It is always a misdemeanor. Burglary (PC 459) covers entering any structure with intent to commit a felony or theft of any value, and can be charged as a felony. The key distinctions are the type of structure, the time of entry, and the value of property involved.
