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California Burglary Laws

Overview of California Burglary Laws

To prove a charge of burglary, a prosecutor must show that the defendant entered a property without permission and intended to commit a crime after entering the premises. The California Penal Code lists the types of properties which an individual might enter while committing a burglary. These types of premises include houses, apartments, residential rooms, and businesses. More uncommon types of property such as tents, outhouses, and others often also qualify.

Specific Intent

The prosecutor must show that the defendant entered the premises with a specific intent to commit a crime. For example, the defendant may have entered a building with a plan to commit larceny. If the defendant did not intend to participate in criminal activity after entering the premises, the prosecutor might have to pursue an alternate charge such as trespassing. See Can I Be Accused of Stealing Something I Borrowed If I Forget to Return It? for related information.

Degrees of Burglary

California state laws establish two types of burglary: first-degree and second-degree. State law defines first-degree burglary as any burglary of an inhabited dwelling. During burglary prosecutions, an inhabited dwelling is any house, vessel, or other property designed for habitation and currently inhabited at the time of the burglary. "Currently inhabited" means that the property was used as a dwelling at the time of the burglary, even if nobody was actually occupying the property then. State law also includes properties abandoned due to a natural disaster or local emergency as currently-inhabited properties.

Any burglary not qualifying as first-degree burglary will proceed as a case of second-degree burglary such as commercial burglary of a business or store.

California Burglary Laws Overview

Below you will find key provisions of California’s burglary laws.

Statutes

California Penal Code Section 460(a), 459 (Residential Burglary/First Degree)

California Penal Code Section 460(b) (Commercial Burglary/Second Degree)

California Penal Code Section 464 (Burglary with Explosives)

Penalties

  • First Degree Burglary: Felony punishable by up to six years in county jail and/or a maximum 1,000 fine, probation, restitution to the victim(s)
  • Second Degree Burglary: Either a misdemeanor up to one year in county jail, and/or maximum fine, probation or felony (depending on the nature of the alleged offense) punishable by up to three years in county jail or state prison, a fine, or both, probation. Also called a “wobbler.” Restitution to the victim(s)
  • Burglary with Explosives: Felony, up to seven years in state prison, fine, probation or parole, restitution to the victim(s)

Possible Defenses

  • Permission to enter
  • Lack of intent
  • Building was not a “structure” under the legal definition
  • Actual Innocence
  • Coercion

Related Charge

California Penal Code Section 466: (Burglary Tools): Possession of lock picks, crowbars, screwdrivers, master keys, spark plugs, a tin foil-lined purse, or any other tool or instrument with the intent of breaking into a building or vehicle, misdemeanor, up to one year jail, fine, probation


Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

California Codes and Legal Research Options

Additional Resources

If you have additional questions about California’s burglary or home invasion laws, click on the following links:

Free Case Review

Proving the crime of burglary in California, particularly the element of intent, can be a huge hurdle for the prosecutor. If you have questions about how to win your case or want to know about any possible defenses, you can learn more from an experienced California criminal defense attorney. Schedule a free initial evaluation of your case today.

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