California Penal Code Section 460(b) defines second-degree burglary as any burglary that does not involve an inhabited dwelling. In plain terms, that covers entering a store, office, warehouse, locked vehicle, or any other non-residential structure with the intent to commit theft or another felony. It is a wobbler, meaning prosecutors can file it as a misdemeanor or a felony. Misdemeanor exposure tops out at one year in county jail; felony exposure runs 16 months, two years, or three years.
How California Splits Burglary Into Two Degrees
Burglary itself is defined by Penal Code 459: entering a building, vehicle, or other listed structure with the intent to commit theft or any felony once inside. Section 460 then sorts those entries by target. First degree is reserved for inhabited dwellings — houses, apartments, occupied boats, floating homes, trailer coaches, and the lived-in portions of other buildings. Section 460(b) sweeps up everything else with a single line: “All other kinds of burglary are of the second degree.”1California Legislative Information. California Code Penal Code PEN 460 – Degrees of Burglary
So 460(b) is not a separate crime with its own elements. It is a classification rule. If the location you entered was not someone’s home, your case is second degree.
What Locations Qualify
Penal Code 459 lists the places where an unlawful entry can become burglary: shops, warehouses, stores, mills, barns, stables, outbuildings, tents, railroad cars, locked or sealed cargo containers, aircraft, and mines, among others.2California Legislative Information. California Code PEN 459 – Burglary Office suites, storage units, workshops, and commercial garages all fit comfortably inside that list.
Vehicles come with a specific rule. Entry into a vehicle only counts as burglary if the doors were locked. Reaching into an unlocked car and grabbing a bag off the seat is theft, not burglary. The same locked requirement applies to sealed cargo containers, whether or not they sit on a vehicle.
Why Most Store Thefts Are Not Charged Under 460(b)
This is the point most people searching for 460(b) information get wrong. Since Proposition 47 took effect in 2014, a large category of conduct that used to be charged as second-degree burglary no longer qualifies.
Penal Code 459.5 defines “shoplifting” as entering a commercial establishment during regular business hours with the intent to steal merchandise worth $950 or less. Shoplifting is a misdemeanor, and the statute is explicit: a person charged with shoplifting cannot also be charged with burglary or theft of the same property.3California Legislative Information. California Code PEN 459.5 – Shoplifting
Second-degree burglary still applies when the facts fall outside that definition:
- The intended theft exceeds $950 in value.
- The business was closed when you entered.
- You entered intending to commit a felony other than larceny.
- The location is not a commercial establishment open to the public — a locked storage unit, cargo container, or vehicle, for example.
There is one narrow exception to the misdemeanor-only rule for shoplifting. People with certain prior convictions, including serious or violent felonies listed in Penal Code 667(e)(2)(C)(iv) or offenses requiring sex offender registration, can face felony punishment even for conduct that would otherwise be misdemeanor shoplifting.3California Legislative Information. California Code PEN 459.5 – Shoplifting
What the Prosecution Has to Prove
Burglary is a specific-intent crime. The prosecutor must show that you intended to commit theft or another felony at the moment you entered, not that you formed that intent later.2California Legislative Information. California Code PEN 459 – Burglary Walking into a store with no criminal plan and impulsively pocketing something afterward is theft, not burglary.
The underlying crime does not have to be completed. Entering a warehouse at night with bolt cutters and an empty duffel bag is enough, even if you are stopped before anything is taken.
Penalties
The wobbler structure gives both prosecutors and judges real flexibility. The charging decision usually turns on criminal history, the value of the property involved, and the specific circumstances of the entry.
As a Misdemeanor
A misdemeanor conviction under Penal Code 461(b) carries up to one year in county jail.4California Legislative Information. California Code PEN 461 – Punishment for Burglary The default fine ceiling for California misdemeanors is $1,000.5California Legislative Information. California Code PEN 19 – Punishment for Misdemeanor A judge may also order summary probation, community service, and restitution to the victim.
As a Felony
A felony conviction is sentenced under Penal Code 1170(h), the realignment framework, which means time is served in county jail rather than state prison. The sentencing triad is 16 months, two years, or three years.4California Legislative Information. California Code PEN 461 – Punishment for Burglary The middle term is the default; the judge moves up or down only if aggravating or mitigating circumstances justify it. Formal probation and full restitution are typical conditions.
Reducing a Felony to a Misdemeanor
Because 460(b) is a wobbler, a felony charge or conviction can be reduced to a misdemeanor under Penal Code 17(b). The reduction can happen at several points in the case:
- The prosecutor files the case as a misdemeanor from the start.
- At sentencing, if the judge grants probation instead of jail time, the court can declare the offense a misdemeanor then.
- During or after probation, you can petition the court for a reduction.
Once reduced, the offense is treated as a misdemeanor “for all purposes,” which lifts the collateral consequences that attach only to felony convictions.6California Legislative Information. California Code PEN 17 – Classification of Offenses If you are facing a felony 460(b) charge, pursuing a 17(b) reduction is often the single most consequential step in the process.
What a Conviction Costs You Beyond the Sentence
The formal sentence is often the least painful part of a second-degree burglary conviction. The ripple effects can last for years.
Firearms
A felony conviction of any kind permanently bars you from owning, buying, or possessing a firearm in California.7California Legislative Information. California Code PEN 29800 – Prohibitions on Firearm Access The ban applies under both state and federal law and survives expungement. A misdemeanor second-degree burglary conviction does not trigger a firearms prohibition on its own, which is another reason the 17(b) reduction matters.
Employment and Licensing
Burglary is classified as a crime of dishonesty, and that label creates real problems in regulated industries. Under Section 19 of the Federal Deposit Insurance Act, anyone convicted of a crime involving dishonesty or breach of trust is generally barred from working at an FDIC-insured bank without a waiver. In the securities industry, felony convictions and certain misdemeanors trigger a statutory disqualification under the Exchange Act, blocking association with a FINRA member firm for ten years absent an approved eligibility proceeding.8FINRA. General Information on Statutory Disqualification and FINRA Eligibility Proceedings State-licensed professions such as real estate, nursing, and teaching may impose their own restrictions.
Immigration
For non-citizens, a 460(b) conviction can be severe. The conviction can qualify as an “aggravated felony” for removal purposes if the sentence imposed on any single count is one year or more, and a suspended sentence counts as a sentence imposed for this analysis. That means even a misdemeanor conviction with 365 days of jail ordered as a condition of probation can cross the aggravated felony line. Burglary convictions also frequently qualify as crimes involving moral turpitude, which can trigger inadmissibility or deportability depending on the number of offenses and the sentence length. Defense attorneys handling non-citizen cases often fight to keep each individual count’s sentence below one year specifically to avoid these triggers.
Civil Demand From the Merchant
The criminal case is not the only exposure. Under Penal Code 490.5, an adult who commits theft from a store is liable for $50 to $500 in civil penalties, plus costs, plus the full retail value of any merchandise not recovered in sellable condition.9California Legislative Information. California Code Penal Code PEN 490.5 – Civil Recovery Retailers pursue these claims through civil demand letters without needing an arrest or conviction. Ignoring the letters can lead to a civil lawsuit or collections activity.
Clearing the Record After Probation
After you complete probation, you can petition the court to withdraw the plea and dismiss the case under Penal Code 1203.4. To qualify, you must have finished all probation conditions, not currently be serving a sentence or facing new charges, and give the prosecutor at least 15 days’ notice.10California Legislative Information. California Code PEN 1203.4 – Relief After Completion of Probation
An expungement releases you from most penalties and disabilities tied to the conviction, but it has limits. You must still disclose the original conviction when applying for public office, applying for a state or local license, or contracting with the California State Lottery Commission. The conviction can still be used against you in a future criminal prosecution. One practical note: unpaid restitution cannot be used to deny the petition.10California Legislative Information. California Code PEN 1203.4 – Relief After Completion of Probation
Common Defenses
Because the charge rises or falls on what was in your mind at the moment of entry, most defenses target that intent element.
- No intent at entry. If the decision to steal formed only after you were inside, the entry was lawful and the crime is theft, not burglary.
- Claim of right. A person who honestly believes they own or are entitled to the property they came to take lacks the intent to steal. The belief does not need to be reasonable, but it does need to be genuine.
- Voluntary intoxication. California allows evidence of voluntary intoxication solely on whether you actually formed the specific intent required for burglary. If you were too impaired to form a plan before entering, the prosecution may not be able to prove the mental state.11California Legislative Information. California Code PEN 29.4 – Voluntary Intoxication
- Consent or authorization. A person invited into a building or authorized to be there has not committed burglary. The key question is whether the entry itself was unlawful.