Burglary is a crime that carries with it a number of general misconceptions. The normal way in which we think of burglary is a person breaking into a home in the middle of the night and stealing valuables while the residents are sound asleep. The family wakes up to find that their television, jewelry and other items have been stolen. While that scenario certainly does describe a burglary, the law defines the crime much more broadly, and at the same time, much more specifically.

In simplest terms, burglary (which is also known as breaking and entering) is a crime that involves the illegal entry into a building, home or other similarly secure area. In that regard, burglary is more closely associated with the crime of trespassing, which is a misdemeanor. While burglary can be treated as a misdemeanor under some circumstances, in many others it is a serious felony.

Burglary is much more severe crime than trespassing for at least two reasons. The first reason is that it involves the illegal entry of a home, building, storage unit, locked vehicle or other similar area; as opposed to entering the lands or outdoor property of another. The second reason burglary is a much more severe crime than trespassing is that an element of the crime is that the offender illegally enters with the intent to either commit a theft or a felony while inside.

The primary California Penal Code statute that proscribes burglary is section 459. The statute is written in a way that it can apply to a wide range of different structures and vehicles, including but not limited to apartments, houses, barns, stables, outhouses, tents, cargo containers, railroad cars, trailer coaches and inhabited campers. Penal Code Section 459 also defines what it means for a structure or vehicle to be "inhabited."

Burglary of "Inhabited" Areas:

Whether or not a burglary takes place in a structure that is inhabited, or on the other hand, inside a business, is a critical distinction because it is a major difference between first degree burglary, which is not only a felony, but a strike; and second degree burglary, which can be prosecuted as a felony, but can also be prosecuted as a misdemeanor. 

In short, a structure is inhabited if it is being "currently" used as a dwelling by one or more persons. This does not mean, however, that the person or persons dwelling there must be present in order for a burglary to occur. For example, a typical single-family home is inhabited by a family. If that family goes out to dinner, their home is still inhabited, even though they are not physically present.

Penal Code Section 459 also contains an exception to the requirement that a structure or be inhabited in order to prosecute for first degree burglary. If a natural (or other) disaster causes the inhabitants of a structure to stop occupying the premises; that vehicle or structure will still be regarded as being inhabited.  

First and Second Degree Burglary:

Whether a burglary is first or second degree is determined by California Penal Code section 460. That section specifically defines first degree burglary, and then classifies all other burglaries as second degree.

In order for a burglary to be classified as first degree, it must involve a house, a "portion" or some other type of building (such as an apartment,) a boat house, RV (or other similar type of vehicle that is designed to be lived in,) and that structure or vehicle must be inhabited. So, any burglary committed within any of these places may be prosecuted as first degree, while all other burglaries will be second degree.

Specific Intent:

Burglary, is a type of crime known as a specific intent crime. This means that when the defendant illegally entered a structure or vehicle, the defendant must have specifically intended to commit a theft crime or a felony while inside. Under most scenarios, this is certainly the case. However, there are at least a few possible scenarios where a person illegally enters, but intends only to commit a non-theft misdemeanor (or no crime at all,) but after entering forms the intent to steal something or commit a felony. If the offender forms the intent to steal something, or commit some felony only after entering the premises; they are likely guilty of trespassing and/or theft, but not burglary. 

Burglary Versus Trespassing:

While, in many ways, burglary and trespassing are similar types of crimes, there are a number of differences that separate them.

First, while burglary requires illegal entry into a locked vehicle, a building, home or another type of structure, trespassing requires only that an offender illegally go onto property, like the back yard of a home.

Second, in order for a person to be convicted of trespassing, a prosecutor only needs to prove that the defendant intentionally entered property without the legal right to do so. In order to be convicted of burglary, the defendant needs to have entered a home or building (or locked car or other type of vehicle, like an RV) with the intent of committing a felony or theft crime while inside.

Third, while trespassing is always a misdemeanor, burglary will typically be charged as a felony. The main exception to this is in the case of second degree burglary. In the case of second degree burglary, the crime is what is called a "wobbler," which means the prosecutor can pursue the charge as either a misdemeanor or a felony.

Related Crime - Possessing Burglary Tools:

A crime that is closely related to burglary is that of possession of burglary tools. What is a burglary tool is defined in California Penal Code section 466. Unlike the crime of burglary, possession of burglary tools is committed merely by possessing the tools, provided the offender has the specific intent to use them in the commission of a burglary.

There are a number of different types of tools enumerated in the statute, including but not limited to: slimjims (the tool, not the meat-based snack,) lock picks and bump keys. A number of other types of tools, not necessarily associated with burglary are also included, such as screwdrivers, crowbars and master keys.

It is also a violation of section 466 for any person to make or alter an "instrument or thing" if that person knows or has a reason to know that the instrument or thing will be used in the commission of a burglary.

While the crime of burglary, itself, is typically a felony (though in the case of second degree burglary it can be a misdemeanor) possession of burglary tools is a misdemeanor. An offender can be charged whether or not they actually use the tools to commit a burglary, but if they do use them in the commission of a burglary, they can be charged with both crimes. 

Related Crime - Safecracking:

California Penal Code section 464 criminalizes a particularly severe form of burglary, colloquially known as safecracking. The crime involves using any form of blowtorch (that is capable of burring through steel or other similarly durable substance) or any form of explosive to gain entry to a safe, a vault or any other similarly secure device. Drills and corrosive chemicals, however, are not included in the definition. For this crime, it does not matter whether the structure, vessel or vehicle in which the secure device is located is inhabited or not, and the value of the items inside is likewise irrelevant.

In all cases, a violation of Penal Code section 464 is a felony, and subjects the offender to a prison sentence of between three and seven years. 

Examples of Burglary:

  • Ted and Barney are business partners. One day, Ted decides that he wants the business all to himself, and is going to kill Barney to get it. So, Ted hatches a plan to break into Barney's house one night with a gun and a suicide note typed out for Barney, shoot him and stage the scene so everyone believes that Barney killed himself. Ted then breaks into Barney's house through an unlocked window, but is observed doing so by a watchful neighbor, who calls the police. Once inside, Ted realizes that Barney is not there. As it happens, Barney is not home because he is out on a date. When Ted attempts to leave through the same unlocked window, he is stopped by officers that arrived on the scene and is arrested. The gun and suicide note are found on him. Ted is then arrested and charged with first degree burglary because he broke into the house with the intent to commit murder, a felony.

  • Bruce is a drug dealer, who traffics primarily in cocaine. Betsy is one of his best customers. Betsy is homeless, largely because she spends whatever money she has, to buy cocaine from Bruce. Because she is homeless, Betsy looks for empty houses at night, typically those in foreclosure, to break into them for shelter. Betsy does not specifically intend to steal things from the homes (as foreclosure homes are often empty,) but will steal whatever of value she can find. One night, Betsy calls Bruce to buy some cocaine, and tells him the address of an empty house she just broke into using a crowbar to pry open a side door. Unknown to the both of them, Bruce is under surveillance by the police officers from the vice division. When Bruce arrives at the house, he goes inside through the side door and sells Betsy a small amount of cocaine out of a bag he is carrying which has a full kilo of cocaine. The officers who followed Bruce to the house notice a foreclosure sign, and the lack of electric lighting in the house and correctly assume that the Bruce's customer had broken into the house. The officers then decide to enter the house and arrest both Bruce and Betsy. Bruce is charged with possession of drugs with intent to sell (a felony) and burglary because he illegally entered a house with the intent to commit that felony. Betsy is charged with possession of burglary tools, trespassing, and possession of drugs, all are misdemeanors. Betsy is not charged with burglary because she did not intend to steal anything inside the house when entering it, and intended to commit only misdemeanors, not felonies.   

  • Scott is a professional thief. He has been pulling off high-end heists for years and has never been caught. He plans every job meticulously and has a penchant for using unique and innovative methods for committing his crimes. For his latest job, he has identified a valuable painting in a penthouse executive office in a low-rise office building. In order to pull off the job, Scott climbs to the top of an adjacent construction crane, attaches a cable and swings over to the balcony of the executive office. He breaks the glass door leading to the office. Once inside, Scott then takes the painting off the wall, removes it from the frame and replaces it with a convincing forgery of the painting. Scott then puts the original painting in a mailing tube he addressed to a P.O. Box he controls, and puts the tube in the outgoing mail bin in the building's mail room. As Scott is exiting the building through a fire exit on the ground floor, he is apprehended by building security who then turn him over to the police. Even though the police are unaware that Scott has actually stolen anything, Scott is nevertheless arrested and charged with second degree burglary because they police are aware of the cable attached to the construction crane and broken glass door of the executive office. From that the prosecutor can demonstrate that Scott at least intended to steal something from the office.

  • Oscar works at a high end jewelry store as the overnight security. Unfortunately, Oscar has a severe gambling addiction, and has been on a prolonged losing streak. He owes a large sum of money to a loan shark who is threatening to break Oscar's legs unless he pays back the debt with interest. Oscar is desperate, so he decides the only way to avoid having his legs broken is to steal some jewelry from the store where he works. The problem for Oscar is that all the valuable jewelry is locked up in a safe before he arrives. His only two options are to either rob the store at gunpoint before the jewelry is put in the safe, or to try and blow open the safe to steal the jewelry. Oscar decides the latter is the better option since nobody else can get hurt. So, he improvises an explosive device using gunpowder he empties out from several bullets issued to him as part of his security duties. The next night, Oscar places the explosive device on the safe and lights the fuse. A few seconds later there is a loud explosion, but the safe is still intact. The explosion sets off alarms and the sprinkler system. The police arrive to the store a few minutes later and find Oscar just sitting there getting soaked by the sprinklers. Oscar confesses everything. He is then arrested and charged with burglary using explosives, and upon conviction is sentenced to five years in prison.        

How Does a Prosecutor Prove Burglary:

For a defendant to be proven guilty of first degree burglary, a prosecutor must prove the following:

  1. The defendant illegally entered a home, part of a building, vessel or vehicle designed for habitation; and
  2. That home, part of a building, vessel or vehicle designed for habitation was inhabited; and
  3. The defendant specifically intended to commit a theft crime or felony while inside;

For a defendant to be proven guilty of second degree burglary, a prosecutor must prove the following:

  1. The defendant illegally entered a structure, vessel or locked vehicle; and
  2. Specifically intended to commit a theft crime or felony while inside. 

Penalties For Burglary:

The penalties for burglary depend largely on whether the crime charged is first degree or second degree. First degree burglary is a significantly harsher sentence, eclipsed only by burglary using explosives (i.e., safecracking.) Second degree burglary is a wobbler in California, and can be charged as either a misdemeanor or a felony:

First Degree Burglary:

  1. Prison time between 2 and 6 years; and
  2. A "strike" under California's Three Strikes Law.

A strike under the Three Strikes Law means that if you are convicted of a later felony, the sentence for that crime is doubled. If you receive a third strike, a life sentence will be imposed.

Second Degree Burglary (Misdemeanor):

  1. Jail time of up to one year; and/or
  2. A fine of up to $1,000; and
  3. Three years summary probation.

Second Degree Burglary (Felony):

  1. Between 16 months and three years in county jail; and a fine of up to $1,000; and
  2. 5 years formal probation.


  1. Prison time between 3 and 7 years; and
  2. A "strike" under California's Three Strikes Law.

Defenses to Burglary Charges:

There are a number of potential defenses to the crime of burglary. Which defenses may or may not apply will largely be dependent on the facts and circumstances surrounding the alleged offense. Some defenses are complete, meaning the defendant cannot be convicted of any crime, while others may serve only to reduce the penalties a defendant faces. A few of the potential defenses are as follows:

No Intent to Commit a Crime While Within the Structure: If a defendant illegally entered a structure, vessel or vehicle, but did not intend to commit any crimes while inside; they can be convicted of trespassing, but not burglary.

No Felony or Theft:  If the defendant, when illegally entering the structure, vessel or vehicle, did intend to commit a crime, but the crime was not a felony and was not a theft crime (e.g., they intended to commit misdemeanor vandalism,) then they cannot be convicted of burglary, but can be convicted of trespassing and the crime they intended to commit (whether simply attempted or completed.)

Unlocked Car: If the defendant is accused of burglarizing a car, but that car was unlocked at the time, then they cannot be convicted of burglary. Depending on the circumstances, the defendant may be guilty of another crime, such as petty or grand theft, or vehicle tampering under Vehicle Code Section 10852, but not burglary.

Structure Not Inhabited:  If a defendant committed a burglary of a structure or a vessel or vehicle deigned for habitation, but that structure, vessel or vehicle was not inhabited at the time, then they can only be convicted of second degree burglary, not first degree burglary.

Actual Case No. 1:  Bill was distraught from breaking off his relationship with Tina.  Bill missed Tina so much that he decided to break into her residence, only so he could be around Tina’s possessions and to remember her.  Bill did not intend on stealing anything or committing any felony while within Tina’s house. Although Bill was charged with 1st degree burglary, we were able to persuade the prosecutor that there was no intended theft, so the offense was merely a misdemeanor trespassing.  Bill was sentenced to misdemeanor probation and a fine.

Actual Case No. 2:   Katie entered the property of a rental facility and took some tables and chairs from their outside storage area.  There was a shed where property was kept as well.  The prosecution’s theory was that Katie was guilty of burglary as well, because she went inside the storage shed to take some items.  We were able to demonstrate that although Katie had entered the facility’s property, she never actually went inside the shed structure, so we were able to get the burglary charge dismissed, and instead Katie pled guilty to a petty theft charge.

How We can Help:  David Foos has over 40 years’ experience representing people accused of crimes.  David served 8 years as a deputy public defender where he handled cases from misdemeanors to homicides.  David is well-experienced and has the depth of knowledge to greatly benefit you in your case.  David will forcefully and skillfully present your case to the D.A. and to the Court, and if necessary will fight for you every step of the way.  After David served as a public defender, David was appointed to the Sacramento Superior Court bench where he presided as a judicial officer for 16 years.  In David’s role as a defense attorney and a judicial officer he has developed relationships which he will use to benefit you.  Contact Sacramento criminal attorney David at 916-779-3500, or on the web at This email address is being protected from spambots. You need JavaScript enabled to view it..  Your initial consultation is at no cost to you.