In California, there is no specific code section that prohibits breaking and entering. However, breaking and entering can subject you to criminal charges for burglary, auto burglary, vandalism, and/or trespass.
- entering a woman’s unlocked apartment with the intent to rape her.
- committing forced entry into a car trunk with the intent to steal the contents.
- smashing a window to break into a house.
- going into another person’s unused garage without their consent.
Vandalism causing less than $400 in damage is always a misdemeanor with a maximum one year of jail time. Otherwise, vandalism is a wobbler with a maximum three years in prison.
Most trespass crimes are misdemeanors in California punishable by up to six months in county jail.
Note that you also face civil lawsuits by the alleged victims to recover for any stolen property or property damage.
You can raise a legal defense to fight a charge under these statutes. Common defenses include:
- you had no intent to commit a crime,
- there was no entry,
- you had consent to be on the person’s property,
- there was no probable cause to arrest you, and/or
- you are the victim of mistaken identity
Our California criminal defense lawyers will explain the following in this article for general information purposes:
- 1. Is breaking and entering a crime in California?
- 2. What are the potential penalties?
- 3. What are common defenses?
- 4. Can the victim file a civil lawsuit?
1. Is breaking and entering a crime in California?
Not in and of itself, but breaking and entering can potentially lead to charges for:
- Penal Code 459 PC, burglary;
- Penal Code 459 PC, auto burglary;
- Penal Code 594 PC, vandalism; and
- Penal Code 602 PC, trespass.
1.1. Burglary, PC 459
Prosecutors must prove the following to convict you of burglary in California:
- you entered any residential or commercial building or room, and
- you did so with the intent to commit a felony offense or a theft once inside.1
Note that you do not have to go completely inside a building in order to “enter” it. Merely reaching an arm into an open window counts as entering because the building’s outer boundary was breached.
Also note that you can get convicted of burglary even if you do not break into the residence or structure. Simply walking in through an unlocked door or open window would qualify. (Breaking and entering laws back in the nineteenth century required that you forcibly enter structures in order to be guilty, but this rule has since been done away with.)
Just entering a structure qualifies as burglary as long as you have intent to commit a felony or theft. It is not necessary that you actually commit the intended felony or theft.
Example: Jim’s neighbors in San Diego are out of town. He breaks a window to gain entry 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 a burglar 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 in a commercial burglary or a residential burglary case.
California burglary law is divided into “first-degree” (FD) and “second-degree” (SD):
- First-degree burglary is burglary of an inhabited residence (but it is not necessary that anyone be home at the time of the burglary). Examples of residences include houses, apartments, and trailer coaches.
- Second-degree burglary is the burglary of any other type of structure (such as stores, businesses, storage sheds, boats, railroad cars, warehouse loading docks, animal pens, and telephone booths).1
1.2. Auto Burglary, PC 602
Auto burglary is a type of second-degree burglary in California. It is defined as entering a locked vehicle or trunk with the intent to either:
- steal the vehicle; or
- steal property in the vehicle; or
- commit any other felony inside the vehicle.
Note that the vehicle must be locked for burglary charges to apply. This is unlike burglarizing a home or structure, where the entryways do not need to be locked.2
1.3. Vandalism, PC 594
Since breaking and entering into a structure or vehicle often results in property damage, you may face vandalism charges as well. Vandalism is defined as maliciously defacing, damaging, or destroying property.
Note that you can face vandalism charges even if you did not physically enter the premises. For example, throwing a brick through a window is vandalism even though the thrower remained outside.3
1.4. Trespass, PC 602
Breaking and entering may also result in criminal charges for criminal trespass, especially if the building or vehicle is on private property. Criminal trespass occurs when you enter or remain on someone else’s property without permission or the legal right.
Note that you must act willfully to be guilty of criminal trespass. “Willfully” means to commit an act willingly or on purpose.
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.
Similar to burglary, “breaking and entering” is not a required element of trespass.4
Also see our article on breaking and entering vs trespass.
2. What are the potential penalties?
Breaking and entering punishments depend on the specific crime:
Breaking and entering crime
Penalties in California
|First-degree burglary||Felony: |
Note that having two strikes triggers a double sentence, and getting a third strike is an automatic life sentence. Learn more about California’s Three Strikes laws.
|Second-degree burglary|| |
As a felony:
As a misdemeanor:
In practice, it is easier to get a felony charge reduced to a misdemeanor if any stolen property amounts to less than $950.
As a felony:
As a misdemeanor:
|Vandalism of less than $400||Misdemeanor: |
The maximum fine is $5,000 if there is a prior vandalism conviction.
|Vandalism of $400 or more|| |
As a felony:
As a misdemeanor:
|Criminal trespass (most cases)||Misdemeanor: |
3. What are common defenses?
Here at Shouse Law Group, we have represented literally thousands of people charged with property crimes involving breaking and entering. In our experience, five common defenses that are very effective with judges, juries, and prosecutors are:
- you did not commit burglary because you had no intent to commit a crime;
- you did not commit burglary because you never entered the premises;
- you did not trespass because you had the property owner’s consent;
- you were arrested without probable cause; or
- you were the victim of mistaken identity.
3.1. You did not commit burglary because you had no intent to commit a crime
Recall that for a burglary charge, a prosecutor has to prove intent. This means you must have entered a structure with the intent to commit a grand theft, petty theft (petit larceny) or a felony. Therefore, it is a defense to say you did not have this intent.
3.2. You did not commit burglary because you never entered the premises
Burglary charges cannot stand if you did not in any way enter the structure or vehicle. Typical evidence in these cases includes surveillance video, eyewitness accounts, and forensic reports.
3.3. You did not trespass because you had the property owner’s consent
Also recall that for trespass, you are only guilty if you were on property without consent. This means it is always a defense to say you had consent of the property owner.
3.4. You were arrested without probable cause
Police must have probable cause before they can arrest you for a crime. If you were arrested for violating this statute without probable cause, then any evidence obtained – such as burglary tools – could get excluded from the case. This means any charges could get reduced or dismissed due to prosecutors having insufficient evidence to prove guilt.
3.5. You were the victim of mistaken identity
Sometimes police arrest the wrong person or witnesses pick the wrong person out of a lineup. Considering many burglaries take place under the cover of night and with masks, it is not unusual for innocent bystanders to be targeted. Unless the D.A. can prove guilt beyond a reasonable doubt, the charges should be dropped for insufficient evidence.
4. Can the victim file a civil lawsuit?
“Victims” of burglary/trespass can sue you if you were the alleged perpetrator.
They can file a civil suit to recover any damages suffered because of the crime.
These suits can even be filed if you were found not guilty of an offense.
Most damages in these cases are related to property damage.
Example: Nia breaks into her boyfriend’s apartment in Riverside 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. (The ex-boyfriend may also get a restraining order against Nia as well.)
For additional help…
For legal advice and to discuss your case with a DUI/criminal law defense attorney, we invite you to contact us our law firm Shouse Law Group at our phone number or contact form. Our experienced criminal defense attorneys are based in Los Angeles County and practice throughout the state.
- CALCRIM No. 1700 – Burglary. Judicial Council of California Criminal Jury Instructions (2017 edition). California Penal Code 459. People v. Montoya (1994) 7 Cal.4th 1027. California Penal Code 460.
- California Penal Code 459.
- California Penal Code 594.
- 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.
- See note 1.
- See note 2.
- See note 3.
- California Penal Code section 602.