Burglary and Breaking and Entering

Breaking and entering is the crime of burglary, which is essentially forcing or merely making your way into a structure with the intent to commit a felony or petty theft once inside. It usually is a crime where no one is present at the time and the offender is there to steal anything of value though you can be charged with burglary if you intended to commit an assault, rape or other felony offense other than or in addition to theft.

Elements of Burglary

In California, the offense of burglary is found in California Penal Code Section 459 and includes:

  • Entering a building or other enclosure
  • WIth the intent to steal or to commit some other felony


You enter a building or enclosure when any part of your body or object under your control crosses the threshold where you are inside. This can include a finger, foot or arm as well as a firearm or tool and it may be for only a moment. Using a flashlight to peer through an open door is considered “entering.”

You can also be guilty of burglary if you are lawfully inside a building but then unlawfully enter a room where you did not have permission to enter and where you intended to steal or commit a felony.


If you are caught inside a building, the state still must prove you had the intent to commit a crime. Usually, there are circumstances or factors that the state can articulate as forming intent such as:

  • Possessing tools such as knives, glass cutters, lock picking devices, screw drivers, crowbars and other instruments commonly used by burglars. You can also be charged with possessing burglary tools, a separate offense categorized as a misdemeanor.
  • Dressed in dark clothing and wearing a mask.

If you formed the intent to steal or to commit some other felony after entering the structure, you may only be guilty of the crime of theft or some other offense and not of burglary since the intent did not exist at the time of the entering.

To Steal or Commit Some Other Felony

If you had the intent to commit a grand theft or even a petty theft, it is sufficient to constitute burglary. The other offense must also be a felony or a “wobbler,” which could be either a misdemeanor or felony. If you intended to commit only a misdemeanor offense, you could only be charged with that particular crime other than burglary.

What is an Enclosure?

California law defines a building or enclosure as one that has the capacity to contain people or animals. Some of the structures in which a burglary can be committed include:

  • Barn
  • Cars, airplanes, trains and boats
  • Shops and warehouses
  • Campers and trailers
  • Houses, rooms and apartments

Related Offenses

Similar to burglary, you can be charged with a number of related offenses:

  1. Auto burglary
  2. This is entering a locked car with the intent to steal or commit some other felony once inside. If the doors were open, you would be charged with trespassing or tampering.
  3. Theft
  4. You can be charged with petty theft if the value of the property stolen is $950 or less or grand theft if over $950. Stealing cars and firearms are considered grand theft.
  5. Robbery
  6. This is a crime of violence since you are taking property from someone by force or the threat of violence. If you intended to rob someone when you entered the structure, you can be charged with both burglary and robbery.
  • Trespass

This is a lesser charge than burglary and can occur by entering any property, regardless if it is a building or enclosure or vacant land. Breaking into someone’s home could be trespass and burglary if you intended to steal property once inside.

Degrees of Burglary

  • First degree burglary

This is a felony offense and involves the unwarranted entry into a residence where people may or may not be present but is inhabited nonetheless for living or sleeping purposes. You face state prison time of either 2, 4 or 6 years and a fine up to $10,000.

  • Second degree burglary

A commercial burglary is a second degree offense. This may be charged as either a misdemeanor or felony. If charged as a felony, the penalty is 16 months, 2 or 3 years in state prison and a fine up to $10,000. If a misdemeanor, you face up to one year in county jail and a fine up to $1,000.

You also face enhanced penalties if you seriously injure someone while in the structure or if you use explosives or a torch to achieve your entry.

Defenses to Burglary

There are some elements of burglary that may be difficult to prove:

Lack of intent

The state must prove you had the intent to steal or to commit some other felony once you entered a building or structure. If you do not have burglary tools on you or are not dressed for the part, you may not face a burglary charge absent some other factor showing your criminal intent when you entered.


If someone identifies you as a fleeing burglar, a good defense lawyer might show that the witness misidentified you by a number of inconsistencies or false impressions. You may also have been present with a number of other people when a theft occurred or left your fingerprints at a burglary scene but where you were present at an earlier time with the owner’s consent.

Immigration Consequences

Under federal immigration law, if you are an alien or permanent resident and you commit a crime of moral turpitude such as burglary, you may have serious immigration consequences. In some cases, you could face potential deportation and not be eligible for cancellation of removal relief.

Call the Law Offices of Ramiro J. Lluis

Facing a charge of burglary or a related offense can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with burglary, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.