What’s the difference between first- and second-degree burglary in California?

Posted on May 30, 2019

California burglary law (under Penal Code 459) is divided into “first-degree burglary” and “second-degree burglary.” First-degree burglary is burglary of a residence. Second-degree burglary is the burglary of any other type of structure (including stores and businesses).

First-degree (or residential) burglary is always a felony. The potential consequences include a state prison sentence of:

• two years,
• four years, or
• six years.

Second-degree (or commercial) burglary is what is known as a wobbler in California law. This means that it may be charged as either:

• a felony, with a potential county jail sentence of 16 months, two years or three years, or
• a misdemeanor, with a potential county jail sentence of up to one year.

Note that burglary occurs when a person enters any residential or commercial building or room with the intent to commit a felony or a theft once inside.

Please also note that a person can always raise a legal defense to challenge a burglary charge, such as by showing no intent to commit a crime.

How does first-degree burglary differ from second-degree burglary?

First-degree burglary under Penal Code 459 PC is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence.

First-degree burglary is sometimes referred to as “residential burglary,” and second-degree burglary is sometimes referred to as “commercial burglary.”

For purposes of the definition of first-degree burglary in California, a “residence” can be an inhabited:

• house,
• boat,
• floating home,
• trailer coach,
• portion of any other kind of building, or
• hotel or motel room.

Are there different penalties for first-degree and second-degree burglary?

There are different penalties for each offense. First-degree burglary is always a felony under California law. The punishment for the crime may include:

• felony (or formal) probation,
• two years, four years or six years in California state prison, and/or
• a fine of up to $10,000.

In addition, first-degree burglary counts as a “strike” under California’s “Three Strikes” law.

In contrast, second-degree burglary carries lighter penalties than first-degree burglary.

Second-degree burglary is what is known as a “wobbler” offense, meaning that it could be charged as either a felony or a misdemeanor.

If charged as a felony, the crime is punishable by:

• felony probation,
• sixteen months, two years, or three years served in county jail, and/or
• a fine of up to $10,000.

A misdemeanor second-degree burglary conviction carries the following potential punishment:

• misdemeanor (summary) probation,
• up to one year in county jail, and/or
• a fine of up to $1,000.

What is burglary under California Penal Code 459?

Penal Code 459 is the California statute that makes burglary a crime.

According to this statute, a burglary is committed when:

1. the defendant enters a building, room within a building, locked vehicle, or structure,
2. at the time of entering that building, room, vehicle, or structure, s/he intended to commit either a California felony or a California theft, and
3. one or more of the following three things is true:

• the value of the property that the defendant stole or intended to steal was more than $950,
• the structure that the defendant entered was not a commercial establishment, OR
• the structure that the defendant entered was a commercial establishment, but the defendant entered it outside of business hours.

Note that a person is guilty of PC 459 burglary as soon as he enters a structure intending to commit a felony or theft offense. There is no requirement that the person actually succeeds in committing the felony or theft.

The following are examples of when a burglary is committed in California:

• Julie breaks into a house while the owners are not home with the intent to steal electronics and jewelry.
• Juan enters a woman’s unlocked apartment with the intent to rape her in the bedroom.
• Mia enters a bank with the intent to commit check fraud once inside.

Are there legal defenses to burglary charges?

A person charged of burglary can challenge it by raising a legal defense. A good defense can reduce the charge or even dismiss it entirely.

The most common defense that an accused can assert is that, while he may have entered a home or other structure, he did not do so with an intent to commit a felony or theft. Please recall that this intent is one of the elements to burglary, per Penal Code 459. This means that if this specific intent is not present in a case, a prosecutor cannot prove a defendant’s guilt beyond a reasonable doubt.

Is shoplifting different than burglary?

PC 459 burglary is distinct from the crime of shoplifting, as specified in Penal Code 459.5 PC. Shoplifting occurs when a person enters an open business, with the intent to steal merchandise worth $950 or less. Recall that burglary involves cases where a person intends to steal something worth more than $950.