The determination as to whether a California burglary offense (under Penal Code 459) gets charged as a felony or a misdemeanor depends on whether the crime is charged as a:
- first-degree burglary, or a
- second-degree burglary.
First-degree burglary is burglary of a residence and it is always charged as a felony.
Second-degree burglary is burglary of any structure other than a residence, and it can be charged as either a felony or a misdemeanor at the discretion of the prosecutor.
First-degree burglary is punishable by imprisonment in the California state prison for:
- two years,
- four years, or
- six years.
Second-degree burglary is punishable by imprisonment in a county jail for up to three years.
What is burglary per California Penal Code 459?
Penal Code 459 says that a burglary is committed when:
- the defendant enters either a building, room within a building, locked vehicle, or structure;
- at the time of entering that building, room, vehicle or structure, he intended to commit either a felony or a theft; and
- 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.
Please note that an accused is guilty of burglary as soon as he enters a structure intending to commit a felony or theft offense. There is no requirement that he actually succeeds in committing that felony or theft.
What is first-degree burglary under California law?
California criminal law says that first-degree burglary is burglary of a residence. “Residences” here may include any of the following:
- a house,
- an inhabited boat,
- an inhabited trailer, and/or
- an inhabited motel or hotel room.
First-degree burglary is always charged as a felony in California.
Some examples of first-degree burglary are:
- John enters his neighbor's home with the intent to kidnap the owner.
- Michelle climbs aboard her ex-boyfriend's floating home with the intent to willfully commit the crime of arson.
- Phillipe breaks into a woman's hotel room with the intent to commit rape.
The crime is punishable by imprisonment in the California state prison for:
- two years,
- four years, or
- six years.
What is second-degree burglary under California law?
California criminal law says that second-degree burglary is the burglary of any structure other than a residence.
The crime is a wobbler offense in California, meaning it can be charged as either a felony or a misdemeanor depending on:
- the facts of a given case, and
- the criminal history of the defendant.
If charged as a felony, the offense is punishable by imprisonment in the county jail for:
- 16 months,
- two years, or
- three years.
If charged as a misdemeanor, the crime is punishable by imprisonment in the county jail for up to one year.
Are there legal defenses to burglary charges?
No matter if burglary gets charged as either a felony or a misdemeanor, a defendant can raise a legal defense to challenge the charge. A strong defense can work to reduce a charge or dismiss it altogether. Please note that an experienced criminal defense attorney will know the best defense to raise on a person's behalf.
There are three common burglary defenses that are often raised. These are:
- while the defendant may have entered a home or building, he did not have the intent to commit a crime,
- if the defendant stole items inside a home or building, they were not over $950 in value, and
- the defendant was arrested without probable cause.
Is shoplifting considered burglary under California law?
California criminal law says that shoplifting is a different offense than burglary. Per California Penal Code 459.5, shoplifting occurs when a defendant:
- enters a commercial establishment,
- does so while that establishment is open during normal business hours, and
- enters with the intent to steal property that is worth less than $950.
So, in other words, shoplifting is a subset of burglary, where the defendant enters an open store or other business with the intent to steal $950 or less worth of merchandise.
For most defendants, shoplifting is charged as a misdemeanor. The offense is punishable by:
- imprisonment in the county jail for up to six months, and/or
- a fine of up to $1,000.