Burglary Defense

Walking through an unlocked door, an open door, or a door you were invited through can still be burglary. The old common-law idea of breaking and entering is not California law.

The crime is complete at entry, if the intent was there. A person who enters intending to steal, then changes their mind and leaves empty-handed, has still committed burglary under the statute.

Entry with intent to commit any felony qualifies. This is how burglary ends up charged alongside assault cases, domestic violence cases, and fraud cases, which surprises people who thought burglary was a property crime.

Burglary of an inhabited dwelling is first degree burglary. "Inhabited" means the place is currently being used as a residence, whether or not anyone happens to be home at the time. A house whose owners are away on vacation is still inhabited. So is an occupied hotel room, a trailer, or an inhabited portion of another building.

Under Penal Code 461, first degree burglary carries two, four, or six years in state prison. It cannot be reduced to a misdemeanor. It is a serious felony, which means it counts as a strike under California's Three Strikes law, and a strike prior follows you into every future case you might ever have. California law also restricts probation eligibility for first degree burglary.

If another person was present in the residence during the entry, the exposure increases further.

Every other burglary is second degree. Commercial buildings, storage units, offices, warehouses, and locked vehicles all fall here.

Second degree burglary is a wobbler. As a misdemeanor it carries up to one year in county jail. As a felony it carries 16 months, two years, or three years. It is not a strike.

Whether a structure counts as inhabited is a factual question with a six-year answer and a three-year answer, and it's one of the two places these cases are genuinely won.

Someone enters a place lawfully, or wanders in, and only later decides to take something. That may be theft. It is not burglary, and the difference in exposure is substantial. This is the single most valuable argument available in a burglary case, and it requires reconstructing the sequence of what happened rather than accepting the version in the report.

A person entering their own residence, a shared residence, a workplace they have access to, or a place they were invited into has a defense that goes to the heart of the charge, though consent is not always a complete answer where the entry exceeded what was permitted.

A genuine, good-faith belief in a right to the property negates intent to steal, even if the belief turns out to be mistaken.

Vacant properties, buildings under construction, and homes a resident has moved out of are all genuinely contestable, and this argument determines whether a strike attaches at all.

Burglary cases often rest on surveillance footage of variable quality, brief eyewitness observation, or forensic evidence with its own weaknesses.

For years, walking into a store intending to steal something was routinely charged as commercial burglary. Proposition 47 changed that in 2014 by creating Penal Code 459.5.

Under 459.5, entering a commercial establishment during regular business hours with intent to steal property worth $950 or less is shoplifting, a misdemeanor carrying up to six months in county jail. When those conditions are met, the statute requires that it be charged as shoplifting. Prosecutors are not permitted to charge the same conduct as burglary instead.

Proposition 36 changed part of this on December 18, 2024.

Under Prop 36, a person with two or more prior theft-related convictions can now face felony exposure for a low-value theft that would have been a mandatory misdemeanor before. The dollar figure alone no longer caps the charge for someone with that record.

Prop 36 also added Penal Code 490.3, which lets prosecutors add together the value of property taken in multiple separate thefts to reach the $950 threshold. They no longer have to show the incidents were part of a single plan or a single intent.

What this means practically: for a first offense involving property under $950 from a store open for business, the misdemeanor shoplifting rule generally still applies. With prior theft convictions, or where the prosecution is aggregating multiple incidents, the analysis is different now than it was two years ago. If you're relying on advice you got before 2025, or on a website that hasn't been updated, you may be working from the wrong law.

One further warning that matters more than it sounds. If a store theft turned into any kind of physical struggle on the way out, the charge may not be burglary or shoplifting at all. Force used while getting away with property can convert a misdemeanor into robbery, which is a strike offense.

Entering a vehicle with intent to steal or commit a felony is second degree burglary, but only if the vehicle was locked.

That single word carries an enormous amount of weight. An unlocked car is not burglary. Reaching through an open window is not burglary. Whether every door was actually secured, whether a window was down, and whether the entry point was locked at all are factual questions the prosecution has to prove, and they're frequently proven on nothing more than the owner's assumption that the car was locked.

The conduct may still be charged as theft or as tampering with a vehicle. But those are different charges with different exposure, and the difference matters.

Where the case has been charged as first degree, establishing that the property was not a residence in the legal sense changes everything downstream, including whether a strike attaches. This is a factual investigation, not an argument.

That means reconstructing the timeline of entry, identifying every lawful reason our client had to be where they were, and examining what the prosecution is actually relying on to prove a state of mind.

Burglary cases frequently involve surveillance footage, field showups conducted shortly after an arrest, and searches of vehicles or residences. Each of those has its own body of law and its own failure points, and a suppression motion under Penal Code 1538.5 can end a case that looks strong on paper.

Where the conduct is store theft under $950 during business hours, the shoplifting statute may bar a burglary charge outright. Where the prosecution is relying on prior convictions or aggregating incidents under Prop 36, those priors and that arithmetic are both contestable.

A second degree burglary filed as a misdemeanor rather than a felony is a different life. Where charges haven't been filed yet, that's a conversation worth having with the prosecutor's office directly.

Restitution, employment, treatment, and family circumstances affect charging decisions, plea negotiations, and sentencing, and they carry more weight when they're presented early rather than assembled the week before a hearing.