Written by attorney David Jon Pullman

California Burglary


Burglary is one of the more commonly charged crimes. It’s quite common for prosecutors to charge simple shoplifting cases as commercial burglaries. Under Penal Code section 459, a burglary is the entry of any type of structure or locked vehicle with the intent to commit a theft or any felony. No felony or theft has to actually be committed, but there must be the intent to commit a theft or felony at the time of entry. Residential burglaries are considered first-degree burglaries and are treated as serious felonies. All other burglaries are second-degree.

First-Degree Burglary

Under Penal Code section 460, any burglary of an inhabited residence or any sort is a first-degree burglary. The word inhabited, in this case, doesn’t mean that somebody has to be present, but just that somebody must be currently living there. First-degree burglaries are considered serious felonies and they count as a strike under California’s Three Strikes law. Under Penal Code section 461, first-degree burglary is punishable by two, four, or six years in prison or probation (with a possible county jail sentence). Under Penal Code section 462, a person convicted of first-degree burglary will get state prison, rather than probation, unless the court finds that it is an unusual case where the interests of justice would best be served by a grant of probation. Under Penal Code section 667.5, if someone other than an accomplice is present in the residence during a burglary, it automatically becomes a violent felony, even if no actual violence occurs. This could add three years to the sentence if the person has a prior conviction for a violent felony. Under Penal Code section 667.9, an additional year is added if the person who is present is over 65, under 14, deaf, blind, developmentally disabled, or paraplegic. Because the stakes are so high, it is really important to do everything possible to beat these charges, have them reduced to a lesser offense, or, at the very least, convince the court that it is an unusual case where probation should be granted.

Second-Degree Burglary

Under Penal Code section 460, all burglaries which are not residential are second-degree burglaries. These are typically burglaries of schools, stores, barns, cars, boats, etc. Second-degree burglaries can be charged as either misdemeanors or felonies. If charged as a felony, it carries a maximum sentence of three years in state prison. Two of the most common types of second-degree burglary are commercial burglary and auto burglary.

Commercial Burglary

There has been a trend in prosecutor’s offices to charge simple cases of shoplifting as felony commercial burglaries. The difference between petty theft and burglary in a shoplifting case is when the intent to steal was formed. If a person enters a store and then decides to steal something, it is petty theft. If that same person decides to steal something and then enters the store, it is commercial burglary. The intent to steal at the time of entry is proven circumstantially by the manner in which the theft was carried out or by the statements of the person who is caught shoplifting. This is why it is absolutely important to never say anything to the police or security if you are caught shoplifting. If you are charged with commercial burglary, it is important to either beat the charge or have it reduced to a misdemeanor.

Auto Burglary

Auto burglary is any entry into a locked vehicle with the purpose of stealing the vehicle, stealing from the vehicle, or committing any other felony. In order for it to be an auto burglary, the vehicle must be locked. If the vehicle was not locked, it can be charged as a theft, if an actual theft has occurred, or a trespass, under Penal Code section 602, or a vehicle tampering, under Vehicle Code section 10853. Visible damage to vehicle locks and statements and admissions made to the police are the most common ways that auto burglary is proven. This is why it is so important to never say anything to the police.


Intent – To be convicted of burglary, it must be proven that you had the intent to steal or commit a felony at the moment that you enter the structure. If you enter a structure without the intent to commit a theft or a felony, it is not a burglary. If you enter and then decide to steal or commit a felony, it is not a burglary.

Vehicle wasn’t locked – You cannot be convicted of auto burglary, unless it is proven that the vehicle was locked and you broke into it.

Mistake – A mistake defense can be applied if you took something that you believed was actually yours or you believed you had permission to take it.

Identity – Many times a burglary prosecution depends on a witness’s identification of a suspect. Because identifications are often very unreliable, it may be a good defense that you were misidentified as the burglar.

Burglary Tools

Under Penal Code section 466, it is a misdemeanor to possess any instrument that you intend to use to facilitate a burglary. This includes obvious burglary tools, such as shaved keys, lock-picks, slim jims, crow bars, etc., as well as any other type of common tool that can be used to commit burglary. Prosecutors will often charge this offense for such common items as a screwdriver, bandana, flashlight, or spark plug, if the circumstances indicate that you are involved in theft crimes. In many cases, this charge can be beaten because the prosecution can’t prove that you intended to use the tool to commit a burglary.

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