"Breaking and Entering" under California Law

Breaking and entering is a commonly used phrase in popular culture. People normally use the term in reference to a forced entry into a structure, such as a burglar busting a window in order to enter someone's house and steal property.  1

In California law, there is no crime specifically called "breaking and entering." That's largely because the crime of burglary no longer requires forced entry.

Suppose, for example, that your neighbor departs for work and accidentally leaves his front door wide open. Once he's gone, you walk through the open door, grab your neighbor's TV, and make off with it. Even though you didn't use any force to enter the home--you didn't even have to open the door--you would be liable for burglary just the same.

Even though breaking and entering is not itself a separate crime, a person who does break and enter in California may be charged with a number of other crimes. We mentioned the obvious example of burglary. But there's also trespassing and vandalism.

In an effort to help you better understand all of these concepts, our Los Angeles Criminal Defense Attorneys will address the following... 2

1) What is Breaking and Entering?
2) Related Charges

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Penal Code 459 PC Burglary, Penal Code 594 PC Vandalism, California Theft Offenses, California Domestic Violence Offenses, and Penal Code 415 PC Disturbing the Peace.

1) What is Breaking and Entering?

"Breaking" refers to the method of gaining entry into a structure by force or fraudulent means.  3

"Entry" refers to any kind of entry whether direct, indirect, complete, or partial of a person into a structure.  4

The concepts of breaking and entering are most commonly associated with the California crime of burglary under Penal Code 459 .  Previously, "breaking" was a required element of burglary in California.  A defendant could not be convicted of burglary unless there was some evidence of forced entry. However, the breaking requirement of burglary was eliminated in the late 1800s.  5

Currently, you can still be charged with burglary even if there is no "breaking" or forced entry into the structure.

However, the concepts of breaking and entering are still associated with a variety of criminal offenses.

2) Related Charges

The concepts of breaking and/or entering are raised in the commission of various criminal offenses.  Some of the most common include (but are not limited to):

Penal Code 459 Burglary

The California crime of burglary is entering someone's property with the intent of committing a felony or petty theft once inside.  6

Forcible entry or entry through fraud into another's property with the intent to commit a felony or petty therein would be considered burglary.

However, as discussed above, "breaking" is no longer a required element of burglary.  Entry without any sign of forcible entry or fraud is sufficient to constitute a burglary, so long as you entered with the intent to steal or commit a felony inside.

Placing a body part such as an arm or leg into a window or door is sufficient to constitute an entry for the purposes of California Penal Code 459, even if your full body never actually enters the structure.  7

In addition, entry into a building may be accomplished by the use of an instrument or tool, such as a hook or a crowbar even if you don't actually enter inside the structure.  8

Penal Code 602 Trespass

Penal Code 602, California's trespass law prohibits willfully entering someone else's property with the specific intent of interfering with their property rights.  9

The most common interferences with property rights that California trespassing laws prohibit are:

  • entering someone else's property with the intent to damage that property,
  • entering someone else's property with the intent to interfere with or obstruct the business activities conducted thereon,
  • entering and "occupying" another's property without permission, and
  • refusing to leave private property after you've been asked to do so.  10

Entry through force or fraud onto another's property without their permission will usually constitute a trespass.  However, as is the case with burglary, breaking is not necessary for trespass.  Entering onto another's property--whether or not by force--is the key element of the offense.

Penal Code 594 Vandalism

Penal Code 594, Penal Code 594, California vandalism law, prohibits defacing, damaging, or destroying someone else's property.  11

Vandalism raises the breaking concept. A person that enters a structure through force may also damage, deface, or destroy another's property in the process.

Let's take a look an example:

Example:  Mike breaks his neighbor's window in order to enter his neighbor's home without his neighbor's permission. Mike, however, gets scared and flees the scene immediately after breaking the window.

By breaking the window, Mike has used force for the purpose of entering another's property. Thus, demonstrating the breaking concept.  Mike has also damaged someone else's property by breaking his neighbor's window.  Mike may be charged with vandalism.
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If you or loved one is charged with breaking and entering and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.


1 California Penal Code 459 (Historical and Statutory Notes). ("As enacted in 1872, the section read: "Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary." The amendment of 1875-76 deleted the requirement that entry be made in the night time and deleted former provisions relating to the method of entry. The amendment added to the list of protected structures "shop, warehouse, store, mill, barn, stable, outhouse, or other building" and it omitted "water craft".

2 Our Los Angeles criminal defense attorneys have local law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

3 California Penal Code 459 (Historical and Statutory Notes). ("As enacted in 1872, the section read: "Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary." The amendment of 1875-76 deleted the requirement that entry be made in the night time and deleted former provisions relating to the method of entry. The amendment added to the list of protected structures "shop, warehouse, store, mill, barn, stable, outhouse, or other building" and it omitted "water craft".

4 People v. Allison, 200 C.3d 404 (1927).

5 California Penal Code 459 (Historical and Statutory Notes). ("As enacted in 1872, the section read: "Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary." The amendment of 1875-76 deleted the requirement that entry be made in the night time and deleted former provisions relating to the method of entry. The amendment added to the list of protected structures "shop, warehouse, store, mill, barn, stable, outhouse, or other building" and it omitted "water craft".

6 Penal Code 459 PC, California's burglary law. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store...with intent to commit grand or petit larceny or any felony is guilty of burglary.")

7People v. Allison, 200 C.3d 404 (1927).

8 People v. Davis, 18 C.4th 712, 715 (1998)

9 California Jury Instructions - Criminal CALJIC 16.330 - Trespass - Entering Land to Interfere With Business. ("In order to prove this crime, each of the following elements must be proved: [1] A person willfully entered land of another, whether unenclosed or enclosed by fence; and [2] The person did so with the specific intent [to injure any property or property rights thereon] [or] [to interfere with, obstruct, or injure any lawful business or occupation being carried on by the [owner of the land or [his] [her] agent] [or] [person in lawful possession of land]].")

10 See same, Penal Code 602(k) PC. ("(k) Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner's agent or by the person in lawful possession.") (m) Entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession.") (o) Refusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner's agent, or the person in lawful possession, or (2) the owner, the owner's agent, or the person in lawful possession.")

11 California Penal Code 594 PC -- Vandalism. ("(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys.")

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