California Penal Code 460 sorts every burglary into one of two degrees based on what was entered. First-degree burglary covers inhabited residences and is always a felony. Second-degree burglary covers everything else and can be charged as either a felony or a misdemeanor. The degree drives the sentence, probation eligibility, and whether the conviction counts as a strike.
First-Degree Burglary Under Section 460(a)
Penal Code 460(a) applies when the burglarized structure is an inhabited dwelling. The statute names inhabited dwelling houses, vessels used as a residence, floating homes, trailer coaches, and the inhabited portion of any other building.1California Legislative Information. California Code PEN 460 – First and Second-Degree Burglary An apartment inside an otherwise commercial building still qualifies, because the residential portion is inhabited on its own terms.
“Inhabited” is a term of art, and it’s where most of the confusion sits. A place is inhabited if someone uses it as a dwelling, even if no one happens to be inside when the entry occurs.2California Legislative Information. California Code PEN 459 – Burglary A house is still inhabited while the owner is at work, away on vacation, or evacuated during a wildfire. The status only drops away when the former occupants have moved out for good and don’t intend to come back, even if some belongings remain inside.3Justia. CALCRIM No. 1701 Burglary Degrees An entry into a residence that has been truly abandoned falls under second-degree, not first.
Second-Degree Burglary Under Section 460(b)
Section 460(b) is a single sentence: “All other kinds of burglary are of the second degree.”1California Legislative Information. California Code PEN 460 – First and Second-Degree Burglary That catch-all picks up stores, offices, warehouses, and other commercial buildings. It also picks up residences that no longer meet the inhabited test.
Auto burglary lives in this category too. Entering a vehicle with locked doors and the intent to steal counts as burglary under Penal Code 459, and because a car is not an inhabited dwelling, the charge is always second degree.2California Legislative Information. California Code PEN 459 – Burglary If the doors were unlocked, the vehicle-burglary element isn’t satisfied, though other theft charges can still be filed.
Shoplifting Is Carved Out
Not every entry into a store with intent to steal is burglary. Since Proposition 47, Penal Code 459.5 treats one scenario separately: entering a commercial establishment during regular business hours intending to steal merchandise worth $950 or less is shoplifting, a misdemeanor.4California Legislative Information. California Penal Code 459.5 A prosecutor cannot stack burglary on top of the same shoplifting act.
The carve-out has limits. If the intended theft exceeds $950, if the store was closed at the time of entry, or if the plan was to commit a felony other than larceny, the conduct returns to standard burglary analysis under 459 and gets graded under 460. People with certain prior serious or violent felony convictions, and those required to register as sex offenders, can also face enhanced punishment outside the basic misdemeanor.
Penalties for First-Degree Burglary
First-degree burglary is always a felony. There is no misdemeanor option. A conviction carries a state prison term of two, four, or six years, with four years as the middle term.5California Legislative Information. California Penal Code 461 – Burglary Punishment Because the burglary statute doesn’t set its own fine, the court can impose up to $10,000 under the default felony fine provision.6California Legislative Information. California Code PEN 672
Probation is largely unavailable. Penal Code 462 creates a presumption against probation for residential burglary, and a judge can grant it only in unusual cases where probation would better serve the interests of justice, with reasons stated on the record.7California Legislative Information. California Penal Code 462 Most first-degree convictions result in prison.
First-degree burglary also counts as a strike. Penal Code 1192.7(c)(18) lists it among the serious felonies that qualify under California’s Three Strikes law.8California Legislative Information. California Code PEN 1192.7 A strike doubles the sentence on any future serious or violent felony, and a third strike can produce 25 years to life. For many defendants this long-tail consequence outweighs the sentence on the burglary itself.
Penalties for Second-Degree Burglary
Second-degree burglary is a wobbler. The prosecutor chooses between felony and misdemeanor based on the facts of the case and the defendant’s record.5California Legislative Information. California Penal Code 461 – Burglary Punishment How much was taken, whether anyone was present, and prior convictions all weigh on that call.
A misdemeanor conviction carries up to one year in county jail and a fine of up to $1,000.6California Legislative Information. California Code PEN 672 A felony conviction carries sixteen months, two years, or three years in county jail under realignment, rather than state prison, plus a potential fine of up to $10,000.9California Legislative Information. California Code PEN 1170(h)
Second-degree burglary is not automatically a strike. The probation restriction in Penal Code 462 doesn’t apply either, so judges have broader room to grant probation on commercial and vehicle burglary cases than on residential ones.
Fighting the Degree
Because the two degrees carry such different consequences, the inhabited-dwelling question is often where the real fight sits in a 460 case. If the defense can show the former residents had permanently moved out with no intention to return, the structure doesn’t qualify as inhabited and the charge drops to second degree.3Justia. CALCRIM No. 1701 Burglary Degrees That won’t make the burglary charge go away, but it removes the strike and opens the door to probation and a shorter sentence. On a residential case, that reclassification is often worth more than any other move in the file.