Under California Penal Code 459, burglary is entering a building, room, or locked vehicle with the intent to commit theft or any felony inside. The crime is complete the instant someone crosses that threshold with the required intent, even if they take nothing and leave immediately. First-degree burglary of an inhabited home is a felony punishable by two, four, or six years in state prison and counts as a strike; second-degree burglary is a wobbler that can be charged as a felony or a misdemeanor.1California Legislative Information. California Penal Code 459
What Counts as Burglary Under PC 459
The statute reaches much further than “breaking and entering.” Force is not an element. Walking through an unlocked door or stepping through an open window is enough, as long as the person had the intent to steal or commit a felony at the moment they entered.1California Legislative Information. California Penal Code 459
The list of covered places is long. Houses, apartments, rooms, shops, warehouses, tents, aircraft, mines, locked cargo containers, and vehicles with locked doors all fall within the statute, along with vessels, floating homes, trailer coaches, house cars, and inhabited campers.1California Legislative Information. California Penal Code 459
“Entry” is defined broadly by the courts. A person enters a building when any part of their body, or any object under their control, crosses the outer boundary. Reaching an arm through a window is enough. Poking a tool past a doorframe is enough.2Justia. CALCRIM No. 1700 – Burglary
The intended crime does not have to be carried out. Getting caught in the doorway with nothing taken, or finding nothing worth taking, does not defeat the charge. The offense is the entry-plus-intent combination itself.
First Degree vs. Second Degree
Penal Code 460 splits burglary into two degrees based on where it happens. First-degree burglary covers any inhabited dwelling house, inhabited vessel, floating home, trailer coach, or inhabited portion of any other building. Everything else, including commercial buildings, storage units, and locked vehicles, is second degree.3California Legislative Information. California Penal Code 460
“Inhabited” does most of the work here. A structure counts as inhabited if someone uses it as a dwelling, even if no one is home at the time. A family’s house is still inhabited while they are on vacation. The structure loses that status only when the former residents have moved out and do not plan to return, even if belongings remain inside.4Justia. CALCRIM No. 1701 – Burglary Degrees That single word can be the difference between a strike-eligible felony and a much lower charge.
Penalties
First Degree Burglary
First-degree burglary is always a felony. The sentence is two, four, or six years in state prison.5California Legislative Information. California Penal Code 461 The statute sets no specific fine, but California’s general felony fine provision lets the court add up to $10,000.6California Legislative Information. California Penal Code 672
First-degree residential burglary is a “serious felony” under PC 1192.7, which makes it a strike under California’s Three Strikes law.7California Legislative Information. California Penal Code 1192.7 One strike doubles the sentence for any future felony conviction. A second strike can result in 25 years to life. This is the most consequential effect of a first-degree conviction, and it lasts well beyond the original case.
Probation is presumptively off the table. PC 462 says probation “shall not be granted” for first-degree burglary unless the court finds an “unusual case where the interests of justice would best be served,” and the judge has to explain the reasoning on the record.8California Legislative Information. California Penal Code 462 Probation for residential burglary is rare in practice.
Second Degree Burglary
Second-degree burglary is a wobbler. Charged as a felony, the sentence is served in county jail under realignment, with a triad of 16 months, two years, or three years, plus a possible fine of up to $10,000.5California Legislative Information. California Penal Code 4616California Legislative Information. California Penal Code 672 Charged as a misdemeanor, the maximum is one year in county jail plus a fine of up to $1,000.
Second-degree burglary is not a strike, and probation is available without the PC 462 restrictions.
The Shoplifting Carve-Out (PC 459.5)
Proposition 47 created an exception that most people who walk into a store to steal something now fall into rather than the burglary statute. PC 459.5 makes it shoplifting, not burglary, to enter a commercial establishment during regular business hours with intent to steal property worth $950 or less.9California Legislative Information. California Penal Code 459.5 Shoplifting is a misdemeanor, and prosecutors are barred from also charging burglary or theft for the same property.
The exception has hard edges. It only applies when the store is open, the intended theft is $950 or less, and the establishment is commercial. Walking into a closed store after hours with intent to steal is still burglary. Intending to take more than $950 is still burglary. Certain prior serious or violent felony convictions can also push a case out of misdemeanor treatment.9California Legislative Information. California Penal Code 459.5 And Prop 47 does not touch auto burglary. Breaking into a locked vehicle is still a second-degree burglary charge, regardless of the value of what is targeted.
Intent at the Moment of Entry Decides the Case
Burglary is a specific intent crime. The prosecution has to prove the defendant already planned to commit theft or a felony at the moment they crossed the threshold. Intent that forms later does not count.
Someone who wanders into an open garage out of curiosity and then impulsively grabs a bicycle has not committed burglary. That person may face theft or trespass charges, but the intent to steal came after the entry, so PC 459 does not apply. The timing sounds academic until you realize it can turn a strike-eligible felony into a misdemeanor.
Prosecutors rarely have a confession pinning down the moment intent formed, so they build the case on circumstantial evidence: tools the person was carrying, behavior before entering, statements made, whether they had any legitimate reason to be there, and what they did once inside. Most defenses attack the same element:
- No intent at the moment of entry, meaning the facts support at most theft or trespass.
- Claim of right, where a genuine belief that you owned or were entitled to the property negates the intent element, even if you were wrong about your legal right.
- Consent to enter, particularly in domestic situations where the defendant had prior authorization to be in the home.
- Mistaken identity, challenging identifications or surveillance evidence in low-light or limited-witness cases.
Burglary vs. Trespassing
The physical act can look identical. Someone breaks into an abandoned warehouse to sleep, and someone else breaks in planning to strip copper wiring. The first is trespass. The second is burglary. The difference is entirely about intent.
The sentencing gap is large. Criminal trespass in California is generally a misdemeanor. Second-degree burglary of the same building can be a felony carrying up to three years. When the evidence of specific intent is thin, defense attorneys often push for trespass, and this is one of the more common plea negotiation points in property cases.
Immigration Consequences
A burglary conviction can be devastating for a non-citizen. Under federal law, a burglary offense qualifies as an “aggravated felony” for immigration purposes if the sentence imposed is at least one year.10Legal Information Institute. 8 USC 1101(a)(43) – Aggravated Felony An aggravated felony makes a non-citizen deportable and generally bars asylum, cancellation of removal, and most other forms of relief.
Even below that threshold, a burglary conviction may be treated as a crime involving moral turpitude, which can independently trigger inadmissibility or deportability. The outcome turns on the sentence length, prior offenses, and the specific facts in the record of conviction. Anyone without citizenship who is facing a burglary charge should talk to an immigration attorney before accepting any plea. The immigration consequences can outlast and outweigh the criminal sentence.
Expungement
PC 1203.4 lets a person who has completed probation petition to withdraw their guilty plea and have the case dismissed.11California Legislative Information. California Penal Code 1203.4 Burglary is not excluded from this relief. The petition can be filed any time after probation ends, as long as the person is not currently serving a sentence, on probation, or facing new charges.
Expungement is not a full erasure. The conviction still appears on some background checks and still counts as a prior strike. It also does not undo the federal immigration consequences. But it can meaningfully change how the conviction is treated in California employment and housing decisions, where the law limits use of dismissed convictions. For first-degree burglary, the harder problem is getting probation at all, because PC 462 makes it presumptively unavailable. Without probation, the path to 1203.4 relief is much narrower.