First and Second Degree Burglary Laws in California

When we hear that someone has been arrested for burglary, we imagine someone breaking into a home, late at night while the occupants sleep, and stealing something. While the scenario described is a burglary under California law, you can be charged with burglary even if you don’t take anything.

Simply put, burglary is defined as someone entering another person’s property with the intent to steal something or, commit any other kind of felony once inside. Even if you don’t act on the intent, the fact that the property was entered initially with the intent to commit a theft or felony is enough to be charged with burglary.

There are two degrees of burglary and they are both considered felonies. Although, second degree burglary is a “wobbler” meaning is can be filed as a misdemeanor. Felony burglary is a serious crime with serious consequences if convicted. The punishment for a conviction of burglary may include fines, prison and payment of restitution to the victim.

Degrees of Burglary Described:

Second-degree burglary, as mentioned above, may be filed as either a misdemeanor or felony, and is committed when a person enters a commercial building with the intent to commit a felony or theft once inside.

First-degree burglary is a felony, and as you may have guessed, is the more serious of the two. This is when a person enters a residence with the intent to commit a felony or theft once inside.

For the prosecution to prove a burglary charge, it must be proven that the defendant entered the property without permission and had specific intent to commit a crime once inside. Absent the intent, the prosecution may be forced to change the charge to trespassing or drop the charges completely.

One defense to a burglary charge might be that the defendant had permission to enter the property. If the defendant had permission to be on the premises, it would be hard to prove burglary. If something had been taken, it could have been an after-thought. In other words, once inside, the defendant notices something he/she wants and decides at that moment to take. There was no intent to commit the crime prior to entering the premises. Remember, a necessary element to prove burglary is intent.

Intoxication may be a possible defense. There was no intent to commit a crime once inside but, in an intoxicated state, enters a dwelling.

Every case is different and the specific facts will dictate the type of defense your attorney will pursue.

The penalties, if convicted, will depend upon how the prosecution files the case. Whether it is filed as 1st degree burglary or 2nd degree burglary. A conviction for 1st degree burglary can carry a sentence of state prison for two, four or six years. A conviction for 2nd degree burglary could be up to one year in jail or three years in prison, depending upon how it’s filed. This in addition to fines and possible restitution to the victim.

There are situations where a court may grant probation rather than jail time. However, with a conviction for 1st degree burglary, the Court cannot grant probation unless it is in the interest of justice and there are unusual circumstances.

Hiring an experienced criminal defense attorney in the County where your case is pending is highly recommended as they will be familiar with the District Attorneys and Judges and will be in a better position to get the best possible outcome.

If you would like to know more about the charge of burglary, contact Orange County Criminal Defense Attorney William Weinberg at his Irvine, California office at 949-474-8008 or at