California Penal Code 459 PC as “entering a structure with the intent to commit a felony (or a petty theft) once inside”.   Its important to know that prosecutors can charge you with this offense even if there is no forced entry of the structure.  All that is required is that you enter a building (or specified enclosure) with the intent  to commit a felony once inside.  Burglary can be charged as either a misdemeanor (known as second degree burglary), or a felony (known as first degree burglary) depending on the circumstances of the case, and your prior criminal history.  You will be charged with first degree burglary if you burgle any inhabited dwelling, that is, a place where people live or sleep.  Second degree burglary is a catch- all and encompasses every other type of burglary such as shoplifting.  If you are convicted of a burglary as a felony, you may face up to six years in the California State Prison.  Because this crime is decided on many discrepancies, it is imperative that you obtain a skilled lawyer if you face any sort of burglary charges.   Because of legal technicalities and difficulties of proof, it is possible for a lawyer such as myself to get the charges reduced or dismissed. 

To be convicted of burglary the prosecuter must prove the following elements: 1. That you entered a building or other specified enclosure, and 2. That, at the time you entered, you had the intent to steal or commit a felony. 

A building is defined as a structure designed for and having the capacity to contain people or animals, or shelter property.  This includes homes, apartments, campers, trailers, shops, warehouses, barns, cars, boats and airplanes.

To prove entry, a part of your body must cross the outer limits of the location, or an object under your control crosses the outer limits of the location. 

The prosecuter must prove that you intened to commit a burglary at the time you entered the location.  Sometimes your intent is clear, and sometimes it is not.  Athough you may deny having the intent to commit a burglary, the prosecution allows your intent to be inferred by surrounding facts and circumstnaces, such as your dress and burglary tools you might be carrying (crowbars, screw drivers, pliers etc.)

The timing of the intent is also key to distinguishing burglary from theft.  If you did not form the intent to steal until you had already entered the enclosure, then you will likely be charged with theft.

California Penal Code 459 burglary is closely connected to a number of other offenses. Some of the most common are as follows:

Auto burglary takes place when you enter a locked car with the intent to either, steal the car, steal property within the car, or commit another felony inside the car.  This crime requires an actual “break in”  

Forgery is committed when you knowingly create, alter, or use a written document, intending to commit a fraud. 

Theft.  Petty theft refers to stolen goods valued at or below $950.00 while grand theft refers to stolen goods or services valued above $950.00 or property stolen directly from another’s person or stolen cars or firearms. 

Embezzlement is defined as stealing property that has been entrusted to you.  For example, an employee who steals from his employer. 

Robbery is defined as the taking of another’s property from his or her person accomplished by force or fear. 

Trespass is defined under Penal Code 602 as entering another’s property without the right to do so.  It is a lesser related charge to burglary. 


If you are convicted of first degree residential burglary, and someone was in the home or structure that you entered, the offense will rise to a vioent felony.  Remember, this violent felony will count as a strike under california’s three strike law.  If you have a prior California violent felony conviction, you will receive an additional and consecutive three-year prison sentence for each of those prior prison terms.  You will also receive an additional and consecutive one or two year enchancement if you committed first degree burglary against an elderly person, a youth under 14, a blind of deaf person, or a developmentally disabled or physically disabled person. 

Burglary is an extremely complicated crime with very serious ramifications.  Luckily, if you hire a skilled attorney, they will be able to argue many defenses to mitigate your case or have it dropped by the District Attorney.   These defenses include the following:  no proof of intent, mistake of fact, consent and innocence.