What are the Degrees of Burglary? A Guide to Charges and Penalties

If you or a loved one is facing a burglary charge, understanding the specific degrees of burglary is the first step in protecting your future. Burglary is a complex crime that carries life-altering consequences, ranging from county jail time to years in state prison. Navigating these legal definitions requires a clear understanding of how the law views "intent" and "entry."

The Legal Definition of Burglary in California (PC 459)

In California, burglary is defined under Penal Code 459. Most people assume that burglary involves "breaking and entering" in the middle of the night to steal a television. However, the legal reality is much broader and often catches people by surprise.

To secure a conviction, a prosecutor must prove three core elements:

1. Unlawful Entry: You entered a building, room, or locked vehicle.
2. A Structure: The location was a residential dwelling, a commercial building, or a secured container.
3. Criminal Intent: You entered with the specific intent to commit a felony or a theft once inside.

Common Misconception: The "Breaking" Myth

You do not actually have to "break" anything to be charged with burglary. If you walk through an unlocked front door or enter a store during business hours with the intent to steal, you have satisfied the "entry" requirement. The law focuses on your mindset at the time of entry rather than whether you smashed a window or picked a lock.

Burglary vs. Robbery vs. Theft

It is common to confuse these three terms, but they are legally distinct:

• Theft: Simply taking someone else’s property with the intent to keep it.
• Robbery: Taking property directly from a person using force or fear.
• Burglary: The act of entering a structure to commit a crime, regardless of whether a victim is present or if anything is actually taken.

First-Degree Burglary: Residential "Strike" Offenses

First-degree burglary is the most serious form of the charge. In California, this is often referred to as "residential burglary." Because this crime involves entering a place where people live and sleep, the law treats it as a violent felony.

Defining the "Inhabited Dwelling"

An inhabited dwelling is any structure currently used for lodging. This includes:

• Houses and apartments.
• Guest houses or "granny flats."
• Inhabited RVs or houseboats.
• Attached garages.

The structure is considered "inhabited" even if the residents are not home at the moment of the crime—as long as they intend to return and still use the space as a residence.

The "Three Strikes" Impact

In California, a conviction for first-degree burglary is a "Strike" under the state’s Three Strikes Law. This means that a conviction will stay on your record permanently and can lead to doubled sentences for any future felony convictions. If you accumulate three strikes, you could face 25 years to life in prison.

Penalties and Sentencing

First-degree burglary is always a felony. If convicted, the penalties typically include:

• Two, four, or six years in California state prison.
• Fines of up to $10,000.
• Formal probation.

Second-Degree Burglary: Commercial and "Wobbler" Charges

Second-degree burglary covers all other types of burglary that do not involve a residence. This most commonly refers to commercial properties like retail stores, warehouses, or offices.

Understanding the "Wobbler"

Second-degree burglary is considered a "wobbler" in California. This means the prosecutor has the discretion to charge the crime as either a felony or a misdemeanor. Several factors influence this decision:

1. The Value of Goods: If the intent was to steal property valued at $950 or less, it might be charged as "shoplifting" (a misdemeanor) under Proposition 47.
2. Prior Record: If you have a clean history, your attorney may be able to negotiate a felony charge down to a misdemeanor.
3. The Circumstances: How the entry occurred and the level of planning involved.

Potential Penalties

• Felony: Up to three years in county jail.
• Misdemeanor: Up to one year in county jail and a fine of up to $1,000.

The "Intent" Factor: The Battleground of Your Defense

The most difficult part of a burglary case for the prosecution is proving intent. They must prove that you intended to commit a crime before or at the exact moment you crossed the threshold.

Proving Intent at the Moment of Entry

If you enter a building and only decide to steal something once you are already inside, you may be guilty of theft, but you are technically not guilty of burglary. This distinction is tiny but massive in terms of your legal defense.

How Prosecutors Use Circumstantial Evidence

Since prosecutors cannot read your mind, they use your actions to infer intent. For example, carrying "burglary tools"—such as crowbars, master keys, or slim jims—is often used as evidence that you planned to commit a crime before you arrived.

Related Offenses: Possession of Burglary Tools

Under California Penal Code 466, it is a misdemeanor to possess tools with the intent to break into a building or vehicle. Even if you never actually enter a structure, simply having these items in your trunk along with evidence of "casing" a neighborhood can lead to an arrest.

Proven Defense Strategies Against Burglary Allegations

A burglary charge is not a conviction. There are several ways an experienced legal team can challenge the prosecution's case.

Mistaken Identity

In many burglary cases, the evidence relies on grainy surveillance footage or eyewitnesses who are under high stress. We look for inconsistencies in these accounts to prove that the police have the wrong person.

Claim of Right or Consent

You cannot "burglarize" a place you have a right to be in. If you believed you had permission to enter or were retrieving property you honestly believed belonged to you, the "intent to commit a crime" element is removed.

The Rubin Law Approach

At Rubin Law, P.C., we believe in a "quality over quantity" approach. Unlike "law mills" that process hundreds of cases a month, Daniel Saul Rubin personally handles your case. This one-on-one attention allows us to uncover the specific details—like a lack of intent or a violation of your rights during the arrest—that can lead to a dismissal or reduction of charges.

Why You Need a Dedicated Los Angeles Criminal Defense Attorney

The Los Angeles County court system is massive and intimidating. Prosecutors in L.A. are often aggressive with burglary charges because they are seen as "gateway" crimes to more violent offenses.

Having a local attorney who understands the nuances of the local courthouses can be the difference between a prison sentence and a second chance. Beyond the immediate jail time, a burglary conviction is considered a "crime of moral turpitude," which can make it nearly impossible to find a job or rent an apartment in the future.

People Also Ask (FAQ)

Can I be charged with burglary if I didn't actually steal anything? Yes. Burglary is the act of entering with the intent to steal. Even if you were scared off or changed your mind once inside, the legal requirement for burglary was met the moment you entered.

Is shoplifting considered second-degree burglary? Under California law, shoplifting is generally treated as a separate misdemeanor if the value of the items is under $950 and the entry happened during normal business hours. However, if the value is higher or you have certain prior convictions, it can be charged as burglary.

What is the difference between residential and commercial burglary? Residential (First-Degree) involves a place where people live and is a serious "Strike" felony. Commercial (Second-Degree) involves businesses or uninhabited structures and is often a "wobbler" that can be reduced to a misdemeanor.

What are the consequences of a "Strike" conviction? A strike conviction means you must serve a higher percentage of your sentence (usually 85%) and your prison time is doubled for any future felony. It is a permanent mark on your record that is very difficult to remove.

Can a burglary charge be reduced to trespassing? Yes. Trespassing is a much less serious charge that involves entering property without permission but without the intent to commit a felony. This is a common goal in plea negotiations.

How does "intent" get proven in court? Prosecutors use evidence like text messages, the possession of tools, or your behavior before the entry to convince a jury of what you were thinking.

Take Action to Protect Your Future

A burglary charge can happen to anyone, but it doesn't have to define the rest of your life. Whether you made a mistake or have been falsely accused, you deserve a defense that is as dedicated and personalized as your situation requires.

Rubin Law, P.C. specializes in high-stakes criminal defense with a focus on protecting our clients' rights and reputations in Los Angeles. Don't leave your freedom to chance with a public defender or a high-volume law firm.

Contact Rubin Law, P.C. today for a free, confidential consultation. Let us start building your defense.

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