Definition of Burglary in California

Burglary, which is often referred to as breaking and entering, is defined as “Every person who enters any [structure] with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Cal. Pen Code, § 240.) There are two main classifications of Burglary: First Degree Burglary and Second Degree Burglary. First Degree Burglary is a felony and is defined as burgling any inhabited dwelling. Second Degree Burglary is burglary in all cases that do not qualify as first degree burglary. (Cal. Pen Code, § 460.)

**Felony – A serious crime usually punishable by imprisonment for more than one year or by death.

**Petit larceny – (Misdemeanor) Theft in all cases that do not qualify as grand larceny. (Cal. Pen Code, § 488.)

**Inhabited Dwelling – “any house, vessel or other property designed for habitation and currently inhabited.” (Cal. Pen Code, § 459.)

**Grand larceny – (Felony) When the money, labor, or real or personal property taken is of a value exceeding $400 except as provided in subdivision (b). Subdivision (b) states that any farm crops are taken of a wholesale value exceeding $250, any aquacultural products taken from a commercial or research operation which is producing that product exceeding the value of $250, and any money, labor, or real or personal property taken by a servant, agent, or employee from his/her principal or employer that aggregates $950 or more in any 12 consecutive month period is considered grand larceny. Subdivision (b) also states that grand larceny is property is taken directly from the person of another and/or the taking of a firearm, automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig, etc. (Cal. Pen Code, § 487.)

What the DA Must Prove

In order for a person to be convicted of Burglary, all the People must show is that:

  • 1. The defendant entered a [structure]; and
  • 2. At the time the defendant entered the [structure], he/she had the intent to commit a theft or a felony.

**Structure – “…any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel…floating home… railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach… any house car… inhabited camper… vehicle… when the doors are locked, aircraft… or mine or any underground portion thereof…”

**Intent – Resolved or determined to do something wrong or forbidden by law. “Actus non facit reum nisi mens sit rea,” which means “the act does not make a person guilty unless the mind is also guilty”.

Punishment for Burglary in California

Burglary in California is a “wobbler,” meaning that the District Attorney’s Office has discretion to file the burglary as either a misdemeanor or a felony depending on the defendant’s criminal history and the facts of the case. Burglary in the first degree is punishable by imprisonment in the state prison for 2, 4, or 6 years. Burglary in the second degree is punishable by imprisonment in the county jail not exceeding one year.

Defenses to Burglary

There are several defenses to the charge of Burglary. One of the best defenses is intent. The prosecution has to prove, beyond a reasonable doubt, that the defendant entered a structure with the INTENT to commit grand or petit larceny or some other felony. What if the defendant was just looking for a bathroom and originally had no intention of taking anything? Or what if the defendant had just suffered an emotional hardship and was not in his/her right mind and didn’t know what they were doing? Then intent, one of the main elements of the crime, is not there and the defendant is not guilty of Burglary.

Immigration Consequences

Criminal convictions can have drastic immigration consequences, such as deportation, denial of naturalization and exclusion from admission. Therefore, if you are not a U.S. citizen and you are charged with Assault in California, it is critical that you speak to a knowledgeable criminal/immigration attorney about your specific immigration status, your current criminal case, and your entire criminal history, to find out what effect an assault conviction would have on your immigration status.