Burglary
In California, burglary charges are a serious matter — one that can put you behind bars and hurt your record forever.
You may face felony charges, which can come with penalties that can isolate you from your family and loved ones and leave you facing an extreme prison sentence.
That’s why it is essential to act now — before you are convicted.
If you have been accused of burglary, contact the attorneys at Elite Criminal Defense to learn more about your options to take action to mitigate harsh penalties that can alter your life.
How Does California Law Define Burglary?
California law defines burglary under California Penal Code Section 459. This section of the Penal Code states that burglary includes any unlawful entry into a residence or other building with the intent to commit theft (grand larceny or petit larceny) or a felony offense of any kind.
There are two types of burglary under California law:
- First-degree burglary: When you’re accused of burglary involving a residential building like a home or apartment
- Second-degree burglary: When you’re accused of burglary involving a commercial building or other structure
The basic crime of burglary is a “wobbler” In California. That means it can be a felony or misdemeanor, depending on the nature of the incident.
For example, if you’re accused of first-degree burglary, you will be charged with a felony. But if you’re accused of second-degree burglary, you could be charged with a felony or misdemeanor.
Penal Code § 459 PC – Specific Definition
Here is exactly how California law defines burglary:
“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, 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 Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “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 a natural or other disaster caused the occupants to leave the premises.”
As you can see, that lengthy and somewhat confusing definition leaves a lot of room for ambiguity and misunderstandings. That’s why it can be so helpful to speak with a trusted California criminal defense lawyer about your unique situation.
Examples of Burglary
Accused of burglary but not sure whether your case fits the definition? Below are just a few samples of specific scenarios that could lead to burglary charges in California:
- Kicking in the door of an apartment and stealing electronics
- Entering a railroad car to take goods
- Going into an unlocked home with the intent to murder the homeowner
If you have any questions about your burglary charges, do not hesitate to reach out to an attorney. A criminal defense lawyer can provide the tools and resources to take a closer look at your charges and build a strong defense.
How Can I Fight a Burglary Charge?
Legal Defenses for Burglary
You do not have to simply accept the charges and face a conviction when you are accused of burglary. You can build a strong defense to fight your charges. In fact, it’s your legal right to do so.
Common burglary defenses include the following:
- You did not actually enter the building you are accused of burgling
- You had no intent to commit a crime upon lawfully entering the premises
- You took items but believed they were yours
However, the specific legal defense for your burglary charges depends on your case’s specifics. If you are unsure what defense strategy is best for your case, contact an attorney and determine your options for potentially reducing or avoiding the penalties for burglary.
Let’s take a closer look at some particular defenses or facts that may help you fight your burglary charge in California.
Lack of Intent
When accused of burglary, one of the more common defenses is a lack of intent. For example, you may not have entered the structure intending to commit a crime. You may have mistakenly entered the wrong residence, thinking you were entering your home. Proving you never intended to take anything or otherwise commit a felony can reduce the penalties you’re facing.
Mistake of Fact
Sometimes, the facts are simply incorrect. For example, you may be accused of auto burglary because the prosecution claims you committed forced entry on a locked vehicle. You may argue, however, that the vehicle was not locked at all.
Factual Innocence
In some cases, one of the best ways to keep your criminal record clean is to show that you did not commit the crime. For example, you may be accused of entering a commercial structure using a crowbar and taking things, leading to penalties under California burglary law. That may lead to a felony burglary charge, but you and your lawyer may argue this is not what happened.
You may have an alibi, for example, that shows you were elsewhere when this felony crime was being committed. Security footage, the word of others, or even other criminal charges, like a DUI, can show you were elsewhere and could not have possibly committed the crime.
Police Misconduct
While law enforcement should keep the peace and ensure criminal offenders are stopped and caught, you may find you were a victim instead. Police entrapment, for example, happens when the police manipulate you into breaking the law when you otherwise wouldn’t have.
If this is relevant to your case, a criminal defense law firm can help you demonstrate that you were entrapped or otherwise the victim of police misconduct.
What are the penalties for burglary in San Diego?
The details of your situation will determine the penalties you may face for burglary in California.
The fact that burglary may be either a misdemeanor or a felony makes it a “wobbler” crime. That means you may be facing misdemeanor charges, which may lead to time in county jail, or felony charges, which can leave you in state prison — all depending on the details of what you allegedly did.
The severity of your penalties may also depend on whether you are accused of committing a residential burglary, auto burglary, or commercial burglary.
Enhancements with California’s three strikes law can also impact your case. Under this law, your sentence may be significantly increased if you have been accused of other serious felonies, like sex crimes or other felonies causing great bodily injury to another person. You may need the legal advice of an attorney to overcome these severe sentences and protect your future.
First-Degree Burglary Penalties
First-degree burglary is a felony in California. Accordingly, the potential penalties are severe.
If you’re convicted, you may face the following penalties for first-degree burglary:
- Fines of as much as $10,000
- Two, four, or six years in prison
- A combination of the two
On top of those penalties, you always face the non-criminal penalties like trouble securing employment and housing, as well as damage to your reputation.
Second-Degree Burglary Penalties
Second-degree burglary can be either a misdemeanor or felony. If you’re charged with the misdemeanor version, you may face lighter — but still quite serious — potential penalties.
Here’s the breakdown of the penalties for second-degree burglary in California:
- Misdemeanor: A fine of up to $1,000, a year in county jail, and/or probation
- Felony: A fine of up to $10,000; county jail time for 16 months, two years, or three years; and/or felony probation
Offenses Related to Burglary
Burglary is related to a few different offenses that can add to your sentence if you are charged with both, as well as offenses that may have a lighter sentence.
Your attorney can help you navigate any of these criminal offenses and take action when you are accused of committing a crime.
Possession of Burglary Tools – California Penal Code Section 466 PC
Having burglary tools in your possession with the intent to break into a residence or otherwise commit a felony is a criminal charge in and of itself in California. Burglary tools include anything that may be used to break and enter. That includes crowbars, screwdrivers, and anything used to pick locks.
Robbery – California Penal Code Section 211 PC
Burglary and robbery are often confused, but they’re not the same thing. Robbery is another crime that revolves around theft, but robbery is about taking property directly from someone by violence or the threat of potential violence (or having the intent to do so).
Unlike burglary, robbery is always a felony in California.
Grand Theft – California Penal Code Section 487 PC
Grand theft is the theft of any property worth more than $950 in California. This charge covers the theft of a specific dollar amount’s worth of goods or cash, and it may also include taking a motor vehicle or a firearm.
Petty Theft – California Penal Code Section 484 PC
Petty theft includes stealing goods or money worth $950 or less. Anything not included under grand theft may count as petty theft.
Forgery – California Penal Code Section 470 PC
In California, forgery is when you use, alter, or create a document with the intent to defraud someone.
How is that related to burglary? Because you can be charged with burglary for entering a store or bank with the intent to commit felony forgery — for example, forging a check at a local bank.
Burglary of a Safe or Vault/ with Explosives – California Penal Code Section 464 PC
Using explosives to steal from a safe or vault can lead to a felony conviction. Using explosives or torches to open a vault can endanger people, which is in part why this charge is always a felony, rather than a wobbler, under California law.
Trespassing – California Penal Code Section 602 PC
Trespassing covers cases where someone enters or remains on another person’s property without permission from the owner. While trespass is about whether you have permission to be on the premises, burglary is about what you intend to do on the premises, regardless of whether you have permission to be there.
Connect with a Burglary Lawyer
At Elite Criminal Defense, we understand how devastating a burglary conviction can be. And you may not have the tools and resources to fully understand your options, identify the right defense strategy, and gather the necessary evidence.
We’re here to help. When you are ready to learn more about your options when accused of burglary, contact us for a consultation by calling 619-642-2310 or completing our online contact form.
Burglary FAQ
What is the difference between first- and second-degree burglary?
In California, first-degree burglary refers to entering a residence with intent to steal or commit a felony, while second-degree burglary refers to entering other buildings with the intent to steal or commit a felony.
What counts as a ‘residence’?
A residence includes any inhabited building where someone may be living. That may include houses, boats or floating homes, trailer coaches, and other inhabited structures. Talk to your lawyer to determine whether the building in your case is defined as a residence.That often means there will be some physical signs of harm to the victim related to this charge. A black eye, bruises, lacerations, broken bones, and more may be evidence against you.
What is the difference between burglary and shoplifting?
Shoplifting involves some of the same elements of burglary but is a distinct charge. You can be charged with shoplifting in California for entering an open business with the intent to steal items for sale that are worth less than $950 total.
What is the difference between robbery and burglary?
Robbery and burglary differ because one is considered a violent crime, and the other a property crime. Burglary includes illegal entry into a residence or building with the intent to commit theft or a felony, while robbery involves directly committing that crime against another person.
How much time can you get for burglary in CA?
In California, first‑degree (residential) burglary is always a felony, and is punishable by 2, 4, or 6 years in state prison, up to $10,000 in fines, and mandatory strike status. Second‑degree (commercial or auto) burglary (A “wobbler”) may be charged as a misdemeanor (up to 1 year jail) or felony (16 months, 2 or 3 years in county jail/prison, up to $10,000).
What determines the severity of a burglary?
Severity of a burglary is influenced by:
- Type of structure: Residential = first‑degree; commercial or vehicle = second‑degree
- Intent and outcome: Possession of a weapon, presence of occupants, injuries, or high-value property yield harsher sentencing
- Prior convictions or strike history: Previous felonies or serious felonies amplify penalties, especially under Three Strikes law.
Does burglary count as a strike under California’s “Three Strikes” law?
Yes—first‑degree burglary is always a strike offense and qualifies as a serious felony in California. Second‑degree burglary may also count as a strike if enhancements apply (e.g. weapon use, injured victim, prior felonies).
How might prior theft or burglary convictions impact my current charge?
Prior convictions severely affect outcomes:
- They can elevate sentencing under felony reclassification statutes (e.g., petty theft with prior – PB 666).
- Under Three Strikes, even one prior strike can double your sentence on a new felony. Two strikes can lead to a life sentence.
- Judges may be reluctant to grant probation if you have multiple theft or burglary-related priors.
Is burglary the same thing as ‘breaking and entering’?
Breaking and entering is often a part of burglary offenses, as burglary involves illegal entry into a building. However, breaking and entering is not a required element in order for you to be charged with burglary in California.
What does it mean to ‘enter’ a structure?
In the context of burglary, to enter a structure means to find a way into a structure and to stay there while intending to commit a crime there.
What is the difference between larceny vs. burglary?
Larceny differs from burglary because larceny is simply the act of theft while burglary is the act of entering a premises to commit theft or a felony. The theft — or larceny — doesn’t actually have to take place in order for you be charged with burglary under PC 459.
How to beat a burglary charge in California?
You can beat a burglary charge in California by attacking two required elements: unlawful entry and criminal intent. Without both, no conviction is possible. Common defenses include:
- Lack of intent: Showing no intent to steal or commit a felony when entering.
- Consent or claim of right: You had permission or believed you owned the property.
- Mistaken identity or alibi: Demonstrating you were not present.
- Police misconduct or flawed evidence: Challenging procedural errors, unreliable eyewitnesses, or lack of corroboration.
Can burglary be expunged in California?
Only some non‑residential (second-degree) burglary convictions may be eligible for expungement in California if:
- You completed probation
- Did not serve any prison time
- Are not facing new criminal charges
First-degree (residential) burglary convictions, which always involve prison, cannot be expunged under current law.
Can I be charged with burglary even if nothing was stolen?
Under PC 459, burglary occurs if you enter a structure (including locked vehicles) with intent to commit theft or another felony—even if no theft or felony occurs.
Which organizations or legal bodies are in charge of handling burglary cases in San Diego?
Burglary cases in San Diego are handled by a combination of law enforcement agencies, prosecutorial offices, public defense services, and the local court system:
- San Diego County District Attorney’s Office: Leads the prosecution of burglary charges across the county, including both residential (first-degree) and commercial (second-degree) cases.
- San Diego Police Department (SDPD): Conducts investigations, collects evidence, and arrests suspects involved in burglary within San Diego city limits.
- San Diego County Sheriff’s Department (SDSO): Oversees burglary enforcement and investigations in unincorporated areas and contract cities throughout the county.
- San Diego Superior Court – Criminal Chambers: Handles arraignments, trials, plea negotiations, and sentencing in burglary cases brought before the county’s judicial system.
- San Diego County Public Defender’s Office: Provides criminal defense services to individuals charged with burglary who cannot afford private legal representation.
Elite Criminal Defense – San Diego Office
Address: 8880 Rio San Diego Dr # 800
San Diego, CA 92108
Phone: 619-771-0769
We proudly serve clients in Downtown San Diego, Gaslamp Quarter, Little Italy, East Village,
La Jolla, El Cajon, Santee, Chula Vista, Bankers Hill, Hillcrest, North Park, South Park, Golden Hills, Mission Hills, Pacific Beach, Mission Beach, and surrounding areas.
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