At common law, which is the law we brought with us from England when we settled the colonies in America, the definition of burglary was the breaking and entering of a dwelling house at night, with the intent to commit a burglary therein. At this point in history, the law against burglary was restricted to the dwelling, or a building within the “curtilage” of the dwelling. 3 Wharton, Crim. Law (15th ed.), § 316. Over time however, the law against burglary expanded in many states to include entering a house, room, apartment, building, or any other enumerated structures, vessels, aircrafts, or vehicles with the intent to commit petit, or grand, larceny or any felony. (infra, § 139)

The most common form of activity that will result in a burglary conviction includes: (1) entering into a residence with the purpose of stealing items of value, (2) entering a bank with the purpose of cashing a bad check, which you know is bad; or (3) entering a commercial establishment with the previous objective of committing a theft. It is worth noting that the crime of burglary does not protect the house or items in a commercial store; a children’s facility or an elder’s facility could also serve as the site of a burglary. For example, if an individual entered a child’s facility, with the intent of kicking a toddler in the head, the individual can be convicted of burglary since he is entering a dwelling with the intent to commit a felony (assault a toddler is a felony in California).

The main element of a burglary charge is the act of entering a residence, or commercial structure. Merely entering a structure with the intent of committing a crime, theft, or felony is going to be sufficient to maintain a conviction for burglary.

What Is The Legal Definition Of Burglary?

In order to be convicted of burglary, the Prosecution must prove the following two elements beyond a reasonable doubt:

  • The Defendant entered a building, be it a commercial, vehicle building, or residence.
  • At the time the Defendant entered the building, they intended to commit theft, or a felony.

Since the Prosecution must prove each element beyond a reasonable doubt, it is important to understand what those elements really mean. At Orange County Criminal Attorney, we have experience with all types of clients facing all kinds of criminal charges, including burglary. With our superior understanding of the elements of burglary, OCCA attorneys are uniquely equipped to fight the Prosecution’s case against you, and ultimately obtain a verdict of not guilty. In the event that our attorneys are unable to obtain an acquittal, our skilled advocates will persuasively advocate for a lesser penalty. A detailed analysis of the elements required for a burglary conviction is set forth below.

What Does It Mean To Have Entered In A Building?

Under California law, if anybody enters a structure with the intent to commit a theft or a felony, that person is most likely going to be convicted of burglary. It should be noted that burglary is a “specific intent crime.” This means that it is irrelevant whether or not the Defendant actually completed the crime, the mere fact that you entered the structure with the intent to commit a theft or a felony is sufficient to maintain the conviction for burglary.


Vince entered Tom’s house, intending to steal Tom’s 1,000 inch television. Once inside the house however, Vince heard noise coming from the bathroom. Worried that he might get caught, Vince climbed up Tom’s fireplace and fled the scene. In this case, if Vince were caught later, he could be convicted of burglary despite the fact that Vince never got Tom’s awesome television. The reason this is the case is that at the time Vince entered Tom’s house, he had the intent to commit theft. That is all that is required for a conviction of burglary.

Pursuant to California Penal Code §459, entering a structure means any part of a person’s body, or any object attached to a person’s body penetrates into the structure itself. California Courts have made clear that a window screen constitutes the outer boundary of a building as it relates to the “entering” element of a burglary charge. People v. Valencia (2002) 28 Cal.4th 1. Additionally, "Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space); the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary'” (Valencia, supra, 28 Cal.4th at p. 11, 120 Cal.Rptr.2d 131, 46 P.3d 920), the slightest penetration beyond the outer boundary constitutes “entrance” as it relates to a burglary charge. People v. Yarbrough (2012) 54 Cal.4th 889, 894.

In the common law era, the key component of the burglary charge was that a door or a window was “broken.” Today California recognizes that there are many forms of illegal entry that do not require “breaking” anything. All that is required to sustain a conviction for burglary is that some portion of the Defendant entered the victim’s structure.


Tom is hanging outside Vince’s window looking in; when he notices that Vince accidentally left the door wide open. Tom decides he wants Vince’s bike, so he strolls into the open door and takes the bike. This is enough to convict Tom of burglary.


Brandon entered Thomas’ apartment through an unlocked door to steal Thomas’s second place trophy in the Gafford competition; Brandon could be convicted of burglary in California.

In order to identify what constitutes a structure under California law, we look to the statute itself, which includes a room, a house, an apartment, a room, or any other enumerated structure. To commit the crime, the Defendant must have the intent to commit petit, or grand larceny, or any other felony within the structure.
It is important to reiterate that the structure does not need to be a residence, it can be any structure so long as there is intent to commit a felony thereon.
Once the Prosecution has proven the elements of burglary beyond a reasonable doubt, the jury must then decide if the Defendant is guilty of 1st or 2nd degree burglary.

What Is The Difference Between First And Second Degree Burglary?

In California, the law breaks burglary into two distinct offenses; first and second degree. After the Prosecution’s case has been proven beyond a reasonable doubt, the jury will decide which form of burglary the Defendant has committed; this in turn decides the penalty you will face.

First Degree Burglary Is Subject To Extremely Severe Penalties

To be guilty of first degree burglary, one does not need to enter a home in the traditional sense, along with the requisite intent. The structure can be a homeless tent, a hotel room, or a mobile home; any type of structure where a victim could consider it a residence. The burglary of an inhabited house, room within an inhabited house, floating home, or trailer is always a felony in California; a residence is anywhere an individual could consider “home.” This is so even if at the time the structure is entered, nobody is currently there. All structures attached to the house are considered a part of the house for purposes of a burglary charge. For purposes of this crime, a structure is inhabited when someone is living there, or lives there and intends to come back. However, the moment an individual leaves a location with the intent to not return, the structure becomes uninhabited for purposes of burglary.
All other burglaries are second degree burglaries, and the penalties associated with second degree burglary are softer than those associated with first degree burglary. Second degree burglary encompasses entering in a commercial structure, where the Defendant knows nobody is living there. In California second degree burglary or “commercial burglary” is known as a “wobbler offense.” This means the Prosecution has the option of charging the Defendant with a misdemeanor, or a felony. The decision is based on the severity of the consequences, and other factors.

What Does The Phrase “Intent To Commit A Theft Or Felony” Mean?

In California, the crime of burglary is a “specific intent” crime, a person may only be convicted if the Prosecution proves beyond a reasonable doubt that at the time you entered the structure, you intended to steal something, or commit a felony. If you developed the intent to commit the crime after entering the structure, an individual will not be found guilty of burglary.

What Are The Penalties If I Am Convicted For Burglary?

  • Depending on which degree of burglary you are convicted of, the penalty will change.
  • In California, first degree burglary is always a felony, and is punishable by formal probation, incarceration in a state prison from two (2) to six (6) years, a fine not to exceed ten-thousand ($10,000) dollars, or a combination of everything. Further, a conviction may constitute a “strike” under California’s “three strikes law.”
  • Any other burglary is a second degree burglary, and carries less severe penalties. A conviction for second degree burglary is known as a “wobbler offense” in California. This means that the Prosecution can choose to charge you with either a misdemeanor, or a felony, depending on the facts surrounding your case.
  • If you are charged with felony second degree burglary, you could face jail time ranging from sixteen (16) months, two (2) years, or three (3) years, a fine not exceeding ten-thousand ($10,000) dollars, or a combination of both.
  • If you are charged with misdemeanor second degree burglary of up to one (1) year in jail, a fine of up to one-thousand ($1,000), or a combination of both.

What Are The Legal Defenses My OCCA Attorney Can Use To Defend Me If I Am Charged With Burglary?

As mentioned above, depending on the degree of burglary you are charged with, you could face different penalties. Regardless of which degree you are charged with, the information will appear on a criminal background check. Today’s employers frequently conduct background searches on people they are considering hiring. As a general rule, employers are hesitant to hire individuals with a criminal background. Additionally, if you were convicted of first degree burglary, it is possible that it will constitute a “strike” under California’s “three strikes law.” Each subsequent strike will result in exponentially worse penalties. It is important to have competent counsel to represent you to obtain the best possible outcome available. The attorneys at Orange County Criminal Attorney have extensive experience representing clients in criminal cases, including burglary charges. Utilizing their experience, our attorneys at OCCA are in a position to advocate for acquittal, a lesser charge, and reduced sentencing. There are many defenses an OCCA attorney can raise that may allow you to walk away without any convictions on your record. The defenses an OCCA attorney can raise include:

  • You never intended to commit a theft or any felony prior to entering the structure.
  • You mistakenly believed a structure was uninhabited.
  • You were not the person who committed the crime.