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.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.