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Burglary is when a person enters a building (residential or commercial), or a car, with the INTENT of stealing or committing a felony while inside. If it’s a building, it does not need to be locked for the defendant to be found guilty. However, if it’s a car, the car would have to be locked for the person to be found guilty of this crime.

Elements of Burglary:

  1. Defendant entered a building or locked car (IMPORTANT NOTE: If it is a building, it does NOT have to be locked.)
  2. When the defendant entered, the defendant had the intent to commit a theft or a felony inside the premises

Again, if it is a building and it is not locked, the defendant can still be found to have completed element number 1. This means that you can still be found guilty of burglary EVEN if the door to the building was not locked. You can just walk right in and if you had the INTENT to commit a theft or a felony, you can be found guilty.

Difference between 1st Degree Burglary and 2nd Degree Burglary

1st Degree Burglary is if the premises was somebody’s residence. First Degree Burglary is always a felony. However, 2nd Degree Burglary is a wobbler because it can be charged as either a felony or misdemeanor.


If it is charged as a misdemeanor, Burglary, PC 459, can result in 1 year in county jail.

If charged as a felony 2nd Degree Burglary, the defendant faces up to 3 years in state prison.

If charged as a felony 1st Degree Burglary, the maximum is 6 years in state prison.

Is It a Strike?

First Degree Burglary is a strike but 2nd Degree Burglary is not a strike.

Defenses to Burglary

What are some defenses to burglary?

  1. It wasn’t you.

Oftentimes, people misidentify who they think committed the crime. Believe it or not, this is not that uncommon in criminal court. Perhaps the premises was dark and witnesses did not get a good look of who entered the building.

2. You did not have the INTENT to steal or commit any kind of felony.

Let’s say you entered a commercial building or someone’s residence, but when you entered, you never had the INTENT to steal anything, and you certainly did not have the intent to commit any kind of felony. Even if you entered without permission, but you did not have any intent to do anything wrong, that could be some other type of offense (perhaps trespassing), but not burglary.

3. The property you were intending to take was yours.

If you were intending to take something that was yours or you at least thought it was yours, it is not burglary. You can’t have the intention of “stealing” something if that something is in fact yours.


Burglary, PC 459, can be a serious charge, especially if it allegedly took place in somebody’s home. Our firm has experience fighting burglary cases, and we have fought aggressively. We will work to find every defense possible. Perhaps the witnesses did not get a good look at the suspect, or perhaps your accuser is making false accusations because he or she has an ulterior motive. Whatever the case, call our firm to see if we can help you with your case. Consultations with our firm are always free. We are located in Orange County but also serve LA County, Riverside County, San Bernardino, and all of southern California. Our phone number is 213-235-7969 and we look forward to working with you.

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