Burglary

What Is Burglary Under California Law?

Penal Code § 459 defines burglary as entering a structure with the intent to commit theft or any felony inside.

Two things about that definition surprise almost everyone:

Nothing has to be taken. The crime is complete at the moment of entry. If you walked in intending to steal and left with nothing, the burglary charge stands.

“Structure” is broad. It covers houses, apartments, and commercial buildings — but also tents, campers, trailers, storage units, outbuildings, and locked vehicles.

“Entry” Can Be Minimal

Entry doesn’t require walking in. California courts have found that reaching a hand through a window, or inserting a tool into an opening, satisfies the element. Any penetration of the structure’s outer boundary can count.

You Can Burglarize a Place You’re Allowed to Enter

This catches people off guard. An employee who enters their own workplace during business hours intending to steal from the register can be charged with burglary — having permission to be there doesn’t matter if the intent to commit a crime existed at entry. The same logic has been applied to stores open to the public and, in some circumstances, to shared residences.

Degrees of Burglary — And Why It Matters Enormously

Penal Code § 460 divides burglary into two degrees, and the gap between them is one of the widest in California criminal law.

First Degree Burglary — Residential

Burglary of an inhabited dwelling: a house, apartment, condo, or any place someone lives — including a trailer or boat used as a residence. “Inhabited” means someone lives there, whether or not anyone was home at the time.

First degree burglary is:

• Always a felony. It cannot be reduced to a misdemeanor.
• A serious felony under Penal Code § 1192.7(c).
• A strike under California’s Three Strikes law.

That last point is the one that matters most. A strike doubles the sentence on any future felony conviction and counts toward a third-strike life term. It follows you permanently.

Where another person was present during the burglary, it may also be charged as a violent felony under Penal Code § 667.5(c), which restricts the credits available to reduce time served.

Second Degree Burglary — Commercial

Burglary of any structure that isn’t an inhabited dwelling — stores, offices, warehouses, garages, and locked vehicles.

Second degree burglary is a wobbler: chargeable as either a felony or a misdemeanor. It is not a strike. Moving a case from first degree to second degree, or from felony to misdemeanor under Penal Code § 17(b), is often the most valuable thing that happens in a burglary case.

Shoplifting Is Not Burglary — Penal Code § 459.5

Before Proposition 47, walking into a store intending to steal was routinely charged as second degree burglary — a potential felony.

Proposition 47 created Penal Code § 459.5, which makes entering a commercial establishment during business hours with intent to steal $950 or less a misdemeanor shoplifting charge instead. Prosecutors generally cannot charge it as burglary.

This matters in two situations: where the alleged value is near the $950 line, and where an older conviction may now qualify for reclassification. If you have a prior felony burglary conviction for conduct that would be shoplifting today, it may be eligible for resentencing.

→ Theft & Property Crimes

Auto Burglary — The Vehicle Has to Be Locked

Breaking into a car is charged as second degree burglary under Penal Code § 459, but only if the vehicle was locked.

That’s a real element the prosecution has to prove, and it fails more often than you’d expect. If the door was unlocked, the window was already down, or the vehicle was left open, the burglary charge doesn’t hold — the conduct may support theft, tampering, or trespass, but not burglary.

Where a window was broken, the prosecution generally has the proof it needs. Where entry was through an unlocked door, the case is genuinely contestable, and the difference between a burglary conviction and a petty theft conviction is substantial.

Burglary vs. Robbery vs. Theft

Three different crimes that get used interchangeably in ordinary speech and mean very different things in court.

Robbery is the most serious of the three. It requires taking property directly from someone’s person or immediate presence using force or fear. Every robbery is a strike, and there is no misdemeanor version.

Burglary requires no contact with anyone. Someone who enters an empty house is a burglar, not a robber, regardless of how the news describes it.

Theft is simply the taking, without the entry element or the force element.

A single incident can support more than one charge. Entering a home and then confronting an occupant can produce both burglary and robbery counts.

What the Prosecution Has to Prove

For burglary under Penal Code § 459, the prosecution must prove beyond a reasonable doubt that:

1. You entered a building, structure, or locked vehicle; and
2. When you entered, you intended to commit theft or a felony inside.

That second element is the whole case.

The intent must exist at the moment of entry. Someone who enters lawfully, or with no criminal purpose, and only later decides to take something has not committed burglary — they may have committed theft, but the burglary charge requires the intent to precede the entry.

Because nobody can see intent, prosecutors build it from circumstance: how entry was made, what time it happened, whether tools were carried, whether the person had a reason to be there, and what was said afterward. Every one of those is an inference, and inferences are contestable.

Burglary Penalties in California

First degree (residential) — a felony carrying state prison exposure, a serious felony designation, and a strike. Not reducible to a misdemeanor.

Second degree (commercial) — a wobbler. As a felony it carries state prison or county jail exposure under realignment; as a misdemeanor, county jail exposure.

Attempted burglary under Penal Code §§ 664/459 carries reduced exposure but is still chargeable, and attempted first degree burglary still carries serious consequences.

Possession of burglary tools under Penal Code § 466 is a separate misdemeanor, frequently filed alongside.

Consequences Beyond Sentencing

• Strike consequences. A first degree conviction doubles the sentence on any future felony and counts toward a life term. This is permanent and cannot be undone by expungement.
• Firearm rights. A felony conviction carries a lifetime prohibition.
• Immigration. Burglary is frequently treated as a crime involving moral turpitude, and in some circumstances as an aggravated felony.
• Employment. Burglary convictions are weighed heavily by employers, particularly for any role involving access to homes, businesses, or property.
• Housing. Residential burglary convictions make rental applications significantly harder.
• Restitution for property damage and loss.

Defenses to Burglary Charges

No intent at the time of entry. The defense that decides most burglary cases. If you entered without a criminal purpose — visiting, looking for someone, retrieving your own property, seeking shelter, or simply in the wrong place — there is no burglary, even if something was taken afterward.

The structure wasn’t inhabited. First degree requires an inhabited dwelling. Vacant properties, buildings under construction, and structures nobody lives in fall outside it, which moves the charge to second degree and removes the strike.

The vehicle wasn’t locked. In auto burglary cases, the locked element is required and frequently unprovable.

Consent to enter. Where you had permission to be there and no criminal intent, the entry element fails.

Claim of right. Entering to retrieve property you genuinely believed was yours negates the intent to steal, even if the belief was mistaken.

Mistaken identity. Burglary cases often rest on partial surveillance footage, a brief witness glimpse, or proximity to the scene rather than direct identification.

Insufficient evidence of entry. Where nothing was taken and nobody saw the entry, the prosecution may be building the entire case from presence nearby.

Unlawful search or seizure. Evidence obtained through an improper stop, search, or detention can be suppressed, which in property cases frequently ends the prosecution.

Reduction Strategies

Beyond outright defenses, much of the work in a burglary case is moving it: first degree to second degree, felony to misdemeanor under § 17(b), or burglary to shoplifting under § 459.5. Each of those steps materially changes what the conviction means for the rest of your life.

Related Charges

• Theft & Property Crimes — Penal Code §§ 484, 487, 459.5
• Trespass — Penal Code § 602, a common reduced charge
• Vandalism — Penal Code § 594, for damage caused during entry
• Receiving Stolen Property — Penal Code § 496
• Assault & Battery — where a confrontation occurred
• Juvenile Crimes — for minors accused of burglary
• Expungements — clearing a prior burglary conviction

Why a Former Prosecutor Matters in a Burglary Case

Burglary charging decisions are judgment calls with enormous consequences. Whether a structure counts as inhabited. Whether the facts support first degree or second. Whether a wobbler gets filed as a felony. Whether the conduct is burglary at all or should have been filed as shoplifting under Proposition 47.

Polina Logrue made those decisions at the Orange County District Attorney’s Office. She knows what evidence of intent prosecutors consider strong and what they consider thin, how the office treats borderline inhabited-dwelling questions, and what it takes to get a first degree charge reduced to second — which is the difference between a strike and a wobbler.

Meet Polina →

Charged With Burglary? Do This First

1. Don’t explain why you were there. Intent is the entire case, and any explanation you give becomes evidence about your state of mind at entry.
2. Don’t consent to searches of your home, vehicle, phone, or belongings.
3. Write down where you actually were and why — including anyone who can confirm it, and anything showing a lawful reason for being present.
4. Preserve any evidence of permission — texts, messages, or anyone who authorized you to be there.
5. Note whether the property was occupied, vacant, or under construction. It affects the degree.
6. Call before charges are filed if possible. The degree gets decided at filing, and that’s the best moment to influence it.

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