Burglary Under California Law


A person who enters a building might be charged and convicted of Burglary under California law. “Burglary” is a common type of criminal charge throughout the United States but it means different things in different jurisdictions. A burglary charge usually involves questions of the defendant’s intent and the character of the building at issue, and the law on Burglary in California is generally concerned with the dangers that arise when someone physically invades the victim’s home, business, or other real property.

How a person can be convicted of Burglary in California

  • Elements of Burglary in California

California Penal Code 459 (“PC 459”) sets out the elements of Burglary under California law. To convict a person of burglary, the prosecution has to prove, beyond a reasonable doubt, that the defendant:

  1. Entered a building
  2. With the specific intent to commit larceny OR any felony

If, during a jury trial, the jury hears all of the evidence and has any reasonable doubt as to either of these elements, then the defendant will be found “not guilty” of burglary. So, for example, if the jury is convinced that the defendant specifically intended to commit larceny or a felony but had reasonable doubt that the defendant entered a building, then they would find the defendant not guilty. Or, if the jury was convinced that the defendant did enter a building but had reasonable doubt as to whether they specifically intended to commit larceny or any felony, then that would result in a not guilty verdict as well.

  • “Entry”-The defendant does not have to “break in”!

Many burglary cases involve claims that the defendant completely entered a building, perhaps by breaking through a door or smashing a window. But the prosecution does not have to prove either of these things in order for the defendant to be guilty of burglary. A person who simply walks through an open door can be guilty of burglary if the prosecution also shows that they specifically intended to commit larceny or some other felony at the time. Also, a person can commit burglary when their body does not completely cross the threshold. If a part of the defendant’s body enters the “air space” of a building, then this is “entry” for the purposes of a burglary conviction. For example, if defendant sticks his arm into an open window hoping to steal something, but then quickly pulls it out upon seeing a police car pass, then that defendant has committed a burglary. Finally, the “air space” of a building includes whatever the owner reasonably considers to be excluded from outsiders, which includes open windows and even the threshold of an outside balcony or patio. A large backyard to a home, however, is usually not considered part of the home’s “air space” under the burglary statute.

  • “Building”-Not just homes!

Originally, a burglary only occurred when the defendant entered a home. PC 459, however, reaches more broadly into “buildings.” This means that a burglary can be committed not just at somebody’s home, but also at a store or a warehouse. Even a garage, a storage unit, a railroad car, some vehicles, some fenced-in areas and large storage containers have counted as “buildings” for the purposes of a burglary charge. In some cases where a defendant is charged with entering more than one room in the same, larger building, each room entered can count as a separate burglary charge if they are separately secured in some way.

  • “With specific intent to commit larceny OR any felony.”

Burglary is a “specific intent” crime, which means that the prosecution has to prove that the defendant actually hoped to achieve a certain result in order to prove its case. As mentioned above, PC 459 is concerned with the type of unlawful entries into someone’s property that are a part of some other criminal scheme. While we often think of “burglars” as people who sneak inside a building in order to steal things, this is only one type of burglary under PC 459. 

  • Intent to commit ANY felony can lead to Burglary conviction!

Entry into a building with the intent to commit ANY felony will count as a burglary under California law, and the prosecution does not have to prove specifically which type of felony the defendant intends to commit in order to convict the defendant on this ground. So, in a case where the prosecutor argues that the defendant entered a building in order to commit a specific type of felony, the jury could believe, after all of the evidence, that the defendant might not have intended to commit that felony, and yet they are all still convinced beyond a reasonable doubt that the defendant intended to commit some other felony, then that would probably result in a “guilty” verdict!

  • Intent to commit to larceny requires intent to permanently deprive someone of their things

In cases that center on the defendant’s intent to commit larceny, things might get more complicated. Larceny could be either a felony or a misdemeanor under California law and so the prosecution does not have to prove a felonious intent under this theory. However, larceny under California law is only committed when the defendant specifically intends to permanently deprive the victim of their property. So, in a case where the defendant might have intended to take someone else’s property from a building but later return it, that defendant would not have specifically intended to commit larceny and so they could not be convicted of burglary on this ground.

Degrees of Burglary under California Law

PC 459 creates two types of burglary charges: First and Second Degree. Both types will always require the prosecution to prove all three of the basic elements listed above. However, proof of additional elements can lead to a more specific, and more serious type of burglary charge.

  • First Degree or “residential” burglary

PC 459 states that a burglary of an inhabited residence or dwelling-place will count as the most serious type of burglary, burglary of the 1st degree. The most obvious types of cases here are when thieves break into a house hoping to steal things or commit some other type of serious crime. However, there are also some other types of 1st degree burglary as well.

  • It doesn’t matter that no one was home…

Even if no one was home at the time that the defendant entered the property, even if the defendant planned their actions such that they would never run into the residents, a burglary charge will still be of the 1st degree if the building was being used for dwelling purposes at the time. 

  • …or that no one was staying there at the time!

In some cases a defendant will enter an unoccupied hotel room or apartment, or perhaps a vacation home when the owner is not staying there, or perhaps a house that the owner is not living in because they have left it for a realtor to sell. All of these cases can count as first degree burglary.

PC 459 states that the prosecutor must prove that the building was “inhabited” at the time in order to convict the defendant of burglary. However, the courts have interpreted this term broadly. Whether a building is “inhabited” for the purposes of a burglary case will depend on the overall character of the building and whether it is intended to be used as a residence and/or for people to stay there overnight. This also includes stores, workspaces, garages, and home offices that are included as part of a home.

  • Second degree or “commercial” burglary

Where a defendant commits a burglary at a commercial location, or at one of the other types of “buildings” that we normally do not associate with residential use, then the charge will be graded as Burglary of the second degree. This type of burglary is called a “wobbler” because it can be charged as either a felony or a misdemeanor (see below for information on possible sentences).

Possible defenses to a burglary charge in California

As with all criminal charges, a successful defense to a burglary charge should consider whether the prosecution’s witnesses might be untruthful or mistaken about whether a burglary ever occurred, or whether the defendant was ever involved in the first place. Issues of mis-identification and fabrication are always possible defense theories and this is no less so for a burglary charge. There are also, however, some other possible defenses specific to burglary that are worth exploring.

  • Does it matter if the defendant had permission to enter the property?

Generally, California courts have ruled that this does not matter. If you go back and re-read the elements of burglary that the prosecution has to prove, you will notice that nothing is mentioned about whether the defendant enters the property of another person or whether the defendant enters the property without permission. All that matters is that the victim entered a building with a certain type of criminal intent. For example, if a defendant enters a store during normal business hours, when the store is open to the public, in order to sneak away with some of the store-owner’s things, then that defendant has committed a burglary under California law because they entered a building (the store) with the intent to commit larceny. The same would be true if the defendant entered the store during normal hours to go and kill the store clerk (because murder would count as a type of felony). Similarly, if a husband and wife own a home together, and the husband hires a hitman to kill his wife while she is at the house, then the hitman is probably guilty of burglary even though they had permission from the owner to go and enter the home. For this reason, consent to enter the property at issue is often not a defense to a burglary charge in California

  • So, can I be convicted of burglarizing my own house?

Usually no, because in those situations, even if you plan to commit larceny or some other crime inside your house, you know full well of your intentions at the time that you enter the building at issue, when you enter it, with permission (albeit your own permission). Similarly, when a building’s owner invites a defendant inside the building in order to commit larceny or some other felony, then this is not burglary either because again, the owner knows full well about the defendant’s criminal intent; that is why they let the defendant inside in the first place. However, in cases like the husband hiring the hitman mentioned above, another, uninformed owner of the property becomes involved, and that type of case would count as a burglary.

While some jurisdictions do require the prosecutor to prove that the defendant trespassed onto another’s property, PC 459 requires no such proof. Consent to enter the building is only a defense to a burglary charge under the narrow circumstances described above.

  • Lack of Criminal intent

As mentioned above, burglary requires the prosecution to prove that the defendant had some kind of specific intent in order to convict them of burglary. While judges and jurors are certainly not equipped to read anyone’s mind, both the prosecution and defense are allowed to draw on circumstantial evidence of the defendant’s state of mind to show what, if any, kind of intentions the defendant may have had when they acted. Be aware that a person can form an “intent” within seconds, and so the prosecutor does not have to prove any extensive planning by the defendant to prove this element of burglary.

  • Specific intent must exist AT THE TIME OF ENTRY

If the prosecution cannot show that the defendant intended to commit larceny or any felony at the time that they entered, then the court should find the defendant not guilty of burglary. If defendant enters a building just to find a place to sleep, for example, and then after having entered the building suddenly notices some things that they would like to steal, that defendant is not guilty of burglary because they did not intend to commit larceny or some other felony at the time of entry. Similarly, a defendant who enters a building just to attend a party, and then decides to rob somebody in the middle of the party, would also be not guilty of burglary. Some other charges might be appropriate in either of these cases, but a burglary conviction would not be proper.

  • No criminal intent at all = no burglary

Sometimes a defendant might enter a building in order to take back what is theirs. This might be a risky or unsafe course of action on the defendant’s part, and it may involve commission of some other crimes based on damage to the building done in order to get inside and reclaim their things. However, the act of taking back what belongs to you is not criminal on its own, and so a defendant who enters a building intending to do this should be found not guilty of burglary.

  • Mistake of fact

Sometimes a defendant in the above scenario might honestly believe that they are reclaiming what is theirs, but it later turns out that they are wrong and so they just stole someone else’s things from the building. If the evidence shows this, however, or at least creates some reasonable doubt on the issue, then the prosecution will fail to prove that the defendant intended to commit larceny or any felony, and so the defendant will be found not guilty in this type of case as well.

Possible punishment and jail time for burglary

As mentioned above, burglary can be charged in either the first or second degree, with the first degree being the more serious type. Burglary of the first degree is always considered a felony and is punishable by 2, 4, or 6 years in prison. Burglary of the second degree, as mentioned above, is “wobbler” because it can be charged as either a misdemeanor or a felony. Burglary of the second degree is punishable by 16 months, 2 years, or 3 years of incarceration if charged as a felony. If charged as a misdemeanor, second degree burglary is punishable by anywhere from 0 days-1 year of incarceration.