Historically, a person who breaks and enters into a habitation at night with an intent to commit a felony inside the dwelling could face a burglary charge at common law. In the past, the offense was committed only if the place structure was a dwelling or other building within the curtilage. 3 Wharton, Crim. Law (15th ed.), § 316. However, the modern view of burglary has changed. Modernly, States have expanded and broadened the definition of this crime, in which now beside considered just crime committed inside the dwelling, burglary is committed when a person “enters” in a house, room, apartment, building, or other enumerated structure, vehicle, vessel, or aircraft (infra, § 139) with intent to commit grand or petit larceny or any felony.

Usually, the most common example of conducts the could lead someone to burglary conviction are: enter in a home to steal clothes, jewelry or any time of personal item of the victim, enter into a bank to cash a check that you know is bad. Or if you go inside to a commercial store with previous intent to commit a theft. Also, the crime of burglary does not just protect house or commercial store, a child facility or elder facility could be considered for purpose of this crime, for instance, if someone goes to a child facility to commit an assault to a child, that could lead of a burglary conviction, since assault into a child is a felony in California.

Entering in a residence or commercial structure is the main element of burglary, just entering with an intent to commit a crime, theft or felony is going to be enough to satisfy the requirements of this type of offense.

Legal Definition

In order for someone be guilty and convicted of Burglary in California, the prosecution must prove into court and to the jury, the following elements of the crime:

  • The defendant entered in a building (could be a residence, commercial or vehicle building).
  • When the defendant entered the structure he/she intended to commit a theft or felony.

For a better understanding lets explain with detail those elements.

Entered In A Building

The California Penal Code established clearly that if someone enters into a structure intending to commit a theft or felony, it is likely that this person will face a burglary. Thus, burglary is a specific crime in California, meaning that, even though you did not complete the crime, you could be charged of burglary.

EXAMPLE: Sarah entered at Karen’s house to steal all her jewelry. However, while she got into the house, she heard a noise in the kitchen and she thought that someone was there, she got scared, jumped out of the window and did not get the jewelry.
In this case, Sarah could face a burglary offense, since she had intent to commit a crime in Karen’s house, even though she did not complete the crime.

Under the Penal Code 459, the concept of entering into a structure means if a part of a person body or object the he/she obtains penetrates into the space inside the building or structure. Furthermore, California Courts had considered “a window screen is clearly part of the outer boundary of a building for purpose of burglary.” People v. Valencia (2002) 28 Cal.4th 1. Also, "Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building, and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary' (Valencia, supra, 28 Cal.4th at p. 11, 120 Cal.Rptr.2d 131, 46 P.3d 920), any slight crossing of which is an entry for purposes of the burglary statute [PC 459]."). People v. Yarbrough (2012) 54 Cal.4th 889, 894.

At common law, in Federal cases the main element of the crime is whether the defendant breaks into the house to commit the crime. For instance, the defendant must have to break the door or the window to be convicted of burglary in Federal Law. However, in California the statute does not require the defendant to break into or enforce the entry of the property to be convicted of burglary, the main conduct that must be proven is that the defendant entered into the property.

EXAMPLE: If someone looked inside a house and the door is open, he enters into the house, takes the bike and leave, it is enough to make a burglary in California.

EXAMPLES 2: A man entered into a property through an unlocked door to commit a petty theft, it could be a burglary in California.

To determinate what is considered structure in California, the statute defines what is a permanent structure, in which includes: a house, room, apartment, building, or other enumerated structure, vehicle, vessel, or aircraft (infra, § 139) with intent to commit grand or petit larceny or any felony.

Thus, the structure that the defendant entered to commit the crime does not need to be a home, dwelling or residence, so long as the defendant entered into a structure, it could be a store or a health department to commit a felony or a theft, he/she would face a charge.

After concluding that the defendant committed the crime of burglary, the jury must decide if the crime was commit in first degree or second degree.

First And Second Degree Burglary

California Laws divided burglary into two degrees, first degree burglary or second degree, the jury after deliberate whether the defendant had committed a burglary, the jury must decide the degree of the crime, for purpose of punishment. 

First degree residential burglary is treat much more serious as commercial burglary. 

The residential burglary does not need to be into a house in a traditional sense, it could be into a hotel room or even in a homeless tend, any type of structure that the victim could considered a residence. First degree burglary is always a felony in California and it’s the burglary of an inhabited house, or a room within an inhabited house, vessel, floating home, trailer coach or part of a building. A structure is inhabited if the victim or someone uses as a dwelling, even if at the moment of the crime there is none home. All the parts attached to the house and connected with it, is considered a part of the house. The courts nowadays considered a vessel and a floating home an inhabited place, only if there is an intent to use the property as a residence. Further, for purpose of this crime, inhabited is when there is someone living inside the structure, however, if someone move out with intention to not return, the structure or the house would be considered inhabited.

On the other hand, all other burglaries are second degree, it is less severe than first degree, in which protects the commercials burglary, enter into a business and factory, in which the defendant knows that none is leaving there. Commercial burglary is a wobbler in California, the prosecution can choose to charge as a misdemeanor or a felony, depending on the circumstance of the case.

Intent To Commit A Theft Or Felony

As explained burglary crime is a specific crime in California, a person only could be convicted of this offense if she/he intended to commit a theft or felony at the time that the defendant entered into the building. If the person had no such intent to commit a crime prior entering in the structure, it is likely that someone could not face a conviction. Furthermore, if after entering the dwelling the person former the intent to commit the crime, this person also could not be convicted of burglary.


The penalties are going to vary depending on whether the jury convicted the defendant with first degree burglary or second degree burglary.

First degree burglary is always a felony in California the punishment could establish by a probation, imprisonment in a State prison from 2 years to 6 years, or fine of up to ten thousand dollars ($10,000), or both fine and imprisonment. Furthermore, the conviction could count has a strike offense.

As explained, second degree burglary is less severe than the first degree burglary. The punishment for the second degree burglary is a wobbler in California, in which means that the defendant could be charge either a felony or a misdemeanor, depending on the facts of the case. The penalties for a felony could be imprisonment in a county jail from sixteen (16) months, two (2) years to three (3); and/or a fine of up to ten thousand dollars ($10,000). However, if the defendant faced a misdemeanor conviction of second degree burglary the punishment is by not exceeding one (1) year in county jail, or a fine of not exceeding one thousand dollars ($1,000), or both imprisonment and fine.

Legal Defense

A burglary as mentioned already could be considered a wobbler in California, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there a felony or misdemeanor register, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with this type of crime, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be used to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems. 
To contest the charges of burglary, San Diego Criminal Attorney would be able to use the following legal defenses, if that is the case:

  • Lack of intent to commit the crime.
  • Mistake of fact.
  • Misidentification.