Under California law, there is no crime specifically of “breaking and entering.” However, a person can be charged with burglary or trespass for unlawfully entering someone else’s home, commercial building, or property.
Per Penal Code 459 PC (burglary), it is a crime for someone to enter a home or building with the intent to commit a felony or theft inside. Per Penal Code 602 PC (trespass), it is an offense for a person to go on someone else’s property without permission. Examples of illegal acts under these statutes include:
- breaking into a house with the intent to steal electronics and jewelry.
- entering a woman’s unlocked apartment with the intent to rape her.
- going into another person’s unused garage without their consent.
A burglary conviction can be either a misdemeanor or a felony. The crime is punishable by up to six years in state prison.
Most trespass crimes are misdemeanors in California. The offense is punishable by up to six months in county jail.
An accused can raise a legal defense to fight a charge under these statutes. Common defenses include:
- no intent to commit a crime,
- consent to be on a person’s property, and/or
- no probable cause.
Note that a “victim” of burglary or trespass can file a civil lawsuit against the perpetrator. The plaintiff can do so to recover any damages suffered because of the crime.
Our California criminal defense attorneys will highlight the following in this article:
- 1. Does California have a law for breaking and entering?
- 2. What are the potential penalties?
- 3. What are common defenses?
- 4. Can the victim file a civil lawsuit?
1. Does California have a law for breaking and entering?
California does not have a law specifically called “breaking and entering.”
Acts, though, associated with this phrase can be charged as crimes per:
- Penal Code 459 PC, burglary, and
- Penal Code 602 PC, trespass.
1.1. Burglary, PC 459
Penal Code 459 PC is the California statute that defines the crime of “burglary.”
A prosecutor must prove the following to convict a person under this code section:
- the person entered any residential or commercial building or room, and
- did so with the intent to commit a felony or a theft once inside.1
Note that a person commits this offense just by entering a structure with criminal intent. It is not necessary that the accused actually commits the intended felony or theft.2
Example: Jim’s neighbors are out of town. He breaks into their home with the intent to steal their artwork. An alarm goes off as he enters the house and he runs off without taking anything. The police later find him and arrest him for burglary.
Here, Jim is guilty under PC 459. This is true even though he did not steal a single item. The mere intent to steal is enough to convict him under the statute.
California burglary law is divided into “first-degree” and “second-degree.”
First-degree burglary is burglary of a residence.
Second-degree burglary is the burglary of any other type of structure (including stores and businesses).3
1.2. Theft, PC 602
Penal Code 602 PC is the California statute that defines the crime of criminal trespass.
A prosecutor must prove the following to convict a defendant under this statute:
- the accused entered, or remained, on someone else’s property, and
- did so without permission or a right to do so.4
Note that a person must act willfully to be guilty of this crime. “Willfully” means to commit an act willingly or on purpose.5
Example: Tiffany is on a hike and gets lost. She tries to get back to a main road but ends up wandering on someone else’s property by accident.
Here, Tiffany is not guilty of trespassing. She did not willfully go on the other person’s land. She did so by accident.
2. What are the potential penalties?
First-degree (residential) burglary is a felony. The crime is punishable by custody in state prison for up to six years.6
Second-degree (commercial) burglary is a wobbler under California law. This means the crime can be charged as either a misdemeanor or a felony.
If a misdemeanor, the offense is punishable by custody in county jail for up to one year.
If a felony, the crime is punishable by imprisonment in jail for up to three years.7
In most cases, California trespass is a misdemeanor. This means it can lead to penalties of:
- up to six months in county jail, and/or
- a fine of up to $1,000.8
3. What are common defenses?
A defendant can beat a charge under these statutes with a legal defense.
Three common defenses are to show that:
- a person did not commit burglary because he had no intent to commit a crime,
- the accused did not trespass because he had the property owner’s consent, and
- the defendant was stopped or arrested without probable cause.
3.1. No intent to commit a crime
Recall that for a burglary charge, a prosecutor has to prove intent. This means the accused must have entered a structure with the intent to commit a theft or felony. Therefore, it is a defense for an accused to say he did not have this intent.
3.2. Consent to be on a person’s property
Also recall that for trespass, a defendant is only guilty if he was on property without consent. This means it is always a defense for an accused to say he had consent. This means permission to be somewhere.
3.3. No probable cause
Police must have probable cause before they can detain or arrest a suspect of a crime. If a person was stopped or arrested for violating this statute, without probable cause, then any evidence obtained could get excluded from the case. This means any charges could get reduced or dismissed.
4. Can the victim file a civil lawsuit?
“Victims” of burglary/trespass can sue the perpetrator.
They can file a civil suit to recover any damages suffered because of the crime.
These suits can even be filed if the perpetrator was found not guilty of an offense.
Most damages in these cases are related to property damage.
Example: Nia breaks into her boyfriend’s apartment to steal his watch. Once inside, she knocks the ex’s 55” tv off the wall and it breaks. She gets scared and runs out without taking a thing.
Here, the ex-boyfriend can file a civil lawsuit against Nia. He can do so to get reimbursement for the damage to his television. Note that he can even sue if the State does not charge Nia with a crime.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
- CALCRIM No. 1700 – Burglary. Judicial Council of California Criminal Jury Instructions (2017 edition).
- People v. Montoya (1994) 7 Cal.4th 1027.
- California Penal Code 460.
- CALCRIM No. 2931 – Trespass: Unlawfully Occupying Property. Judicial Council of California Criminal Jury Instructions (2017 edition).
- People v. Lara (1996) 44 Cal.App.4th 102.
- California Penal Code 461.
- See same.
- California Penal Code 602.