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Is burglary a felony or a misdemeanor in California?

Posted by Neil Shouse | Apr 12, 2019 | 0 Comments

burglar trying to enter home through window
First-degree burglary is burglary of a residence and it is always charged as a felony.

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:

  1. the defendant enters either a building, room within a building, locked vehicle, or structure;
  2. at the time of entering that building, room, vehicle or structure, he intended to commit either a felony or a 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.

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:

  1. while the defendant may have entered a home or building, he did not have the intent to commit a crime,
  2. if the defendant stole items inside a home or building, they were not over $950 in value, and
  3. 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:

  1. enters a commercial establishment,
  2. does so while that establishment is open during normal business hours, and
  3. 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.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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