For purposes of this website, the California Penal Code breaks all crimes into 7 categories: (1) Crimes Against Public Justice, (2) Crimes Against the Person, (3) Crimes Against the Person Involving Sexual Assault and Crimes Against Public Decency and Good Morals, (4) Crimes Against Public Health and Safety, (5) and Crimes Against Property. Embezzlement falls in the category of Property, and is one (1) of (7) Crimes Against Property that is covered on this website. Those crimes include: (1) Petty Theft, (2) Grand Theft, (3) Shoplifting, (4) Burglary, (5) Robbery, (6) Embezzlement; and (7) Receiving stolen property. Many of the Crimes Against Property have substantial similarities. In a nutshell, the various “Crimes Against Property” require “the intent to permanently deprive the true owner of their property.” The various crimes differ generally in the sense of the value of the property that was taken, and how the property was taken. The value of the property will determine whether or not the crime is charged as a petty theft, or as a grand theft, which in turn determines the penalties the Defendant may face. The manner in which the Defendant took the property will determine the crime, which will also affect the penalties the Defendant may face. If you are accused of a Crime Against Property it is essential that you obtain competent legal counsel promptly.

Burglary has been a crime since the era of common law, which is the term for the law as it was in England, and throughout the colonial era of the United States. At common law, the definition of burglary included the breaking and entering of a dwelling house at night, with the intent to commit a theft or felony within the dwelling house. As our law evolved, California decided that the crime of burglary should be extended to include structures that were not currently being used as a dwelling, and commercial properties. Today, any location with clear boundaries can serve as the location of a burglary; specifically rooms within a house can be deemed a structure for purposes of burglaryi

The crime of burglary is designed to protect items inside structures where a person presumes their property is safe. It is also designed to protect the sanctity of a person’s home by providing enhanced penalties. Burglary is known as a “wobbler offense”, which means the Prosecution will bring the charge as a felony or misdemeanor. Since this is not up to the Prosecutor per se, it is not properly coined a “wobbler offense.” The distinction is where the burglary occurred. If the burglary occurred in an inhabited dwelling, the burglary is a first degree burglary and will be charged as a felony. If the burglary occurs in any other structure, it will be considered a second degree burglary and charged as a misdemeanor. The attorneys at Los Angeles Criminal Lawyer have represented clients against charges across the spectrum ranging from Battery Causing Serious Bodily Injury to Petty Theft, and including Burglary. The LACL attorneys have an in-depth understanding of every element of every crime an individual could be charged with. The information regarding the crime of burglary is set forth below.

What is Burglary?

The crime of Burglary is set forth in California Penal Code §459, and the jury instructions for the crime of Burglary can be found in CALCRIM 1700ii. To obtain a conviction for the crime of burglary, the Prosecution must prove the following elements, beyond a reasonable doubt, to the jury:

  1. The Defendant broke and entered into a building;
  2. When the Defendant broke and entered into a building, it was for the purpose of committing a theft or any other felony; AND
  3. The structure was a non-commercial building; OR
  4. The structure was a commercial building, but the breaking and entering occurred after normal business hours.

The Prosecution must prove every element beyond a reasonable doubt, as such it is a common defense to simply negate the Prosecution’s case itself; if one element of the crime is not proven, the Defendant cannot be convicted of the crime. Los Angeles Criminal Lawyer has decades of combined experience representing clients who have been accused of all manners of crimes, including burglary. At LACL we have a deep understanding of each and every element of the crime of battery, and use that understanding to provide the very best legal defense available in the hopes that we will obtain a favorable outcome to our client’s case. Additionally, our understanding of the law will assist us in effectively, and persuasively, advocating for a lesser sentence in the unfortunate event the jury finds our client guilty of burglary. The remained of this article will discuss: (1) the elements of a burglary, (2) the difference between burglary and other Crimes Against Property, (3) The penalties associated with a conviction of first, and second, degree burglary; and (4) how Los Angeles Criminal Lawyer can assist you if are charged with a burglary.

What Is “Breaking And Entering”?

The first element of burglary has two prongs: (1) the act of breaking and entering, and (2) that a structure be the subject of the breaking and entering. This portion will focus on what “breaking and entering” means. It is a common misconception that something actually needs to be “broken” or that the defendant had to actually “enter” the structure; these are terms of art in the legal community. In fact, breaking and entering are nearly synonymous. Legally, you have broken and entered the moment any portion of your body, or instrumentality attached to your person crosses the “close” of a structure. The concept of the “close” of a structure is a hypothetical boundary where a reasonable person would expect some protection against an intrusioniii. The moment you have crossed that hypothetical boundary, you are deemed to have broken and entered.

The act of “breaking and entering” is strictly construed. Thus, information that the door was wide open, or that there was no window won’t serve as a valid defense to a criminal charge of burglary; it may go to an argument relating to consent (e.g., the “Victim” left the door unlocked so you could go into the house and take property away – of course that defense would properly be raised as it relates to the element of the crime requiring the specific intent of committing a theft of a felony). The next prong of the first element of Burglary is that the Defendant broke and entered into a structure.

What Constitutes A Building?

The concept of a structure is fairly straightforward, and has been defined as a structure with walls on every side of it, and a roof covering itiv. The concept of a building has received a broad interpretation and structures including a telephone booth, a food stand on wheels, a chicken coop, a vehicle, a motor home, and a boat house. The area of a house also extend to what is known as the “curtilage” of the building, which includes parts of the home that are not buildings themselves, but are so attached to the building as to constitute being a part of it. Examples of curtilage include garages, balconiesv, and porches. Finally, some structures can have “sub-structures” within them, specifically each time the Defendant enters a new room, that has a specific boundary, they are deemed to have broken and entered into that “sub-structure” providing a second bite at the apple for the Prosecution to prove the requisite intent. It should be noted that the crime of burglary occurs the moment the Defendant breaks and enters into a building, while simultaneously having the intent to commit a theft or a felony therein.


Dan was walking down a residential street in Tarzana minding his own business on a nice day. As he passed by his friend Victor’s house, he saw a new bike on a porch enclosed by netting. Recalling that Victor had told Dan that he had a new bike he was going to give to Dan for free, Dan assumed the new bike was his. Dan walked up to the porch door, which was always unlocked, and took the bike home believing it was his. Unbeknownst to Dan, that was not the bike Victor was talking about. Dan may be convicted of burglary. Dan broke and entered a home because the curtilage of the home is considered part of the home. When he entered the home, he intended to commit a petty theft by larceny as the bike was not his, and he took the bike intending to permanently deprive Victor of it. As a practical matter, it is unlikely Dan would be convicted on these facts, but this is technically a burglary.

Once the Prosecution has proven that the Defendant (1) broke and entered, and (2) they broke and entered into a “building”, the Prosecution must then prove that at the time the Defendant committed the act (known as the “actus reas”), they concurrently had the intent to commit a theft, or a felony therein.

What Is A Theft Of A Felony?

The act of breaking and entering into a building is not enough to be convicted of burglary; the Defendant must have also had the intention to commit a theft, or a felony inside the building (known as the “mens reas”). We will look at theft first.

What is a Theft?

A theft can be either “petty” or “grand”, the distinction is based on the value of the item that was stolen. There are four kinds of theft: (1) Theft by Larceny, (2) Theft by False Pretense, (3) Theft by Trick; and (4) Theft by Embezzlement. This portion of the article will briefly identify the elements of each kind of theft

Theft by Larceny

Theft by Larceny consists of the following:

  1. You obtained possession of property, which belonged to someone else;
  2. The owner of the property did not consent to the taking;
  3. At the time of the taking, you intended to permanently deprive the owner of that property; AND
  4. You moved the property, even a small distance

Theft by False Pretense

Theft by False Pretense consists of the following:

  1. The Defendant deceived the rightful owner of property;
  2. The Defendant used false pretenses to deceive the owner.
  3. When the Defendant engaged in the conduct set forth in (1) and (2), they did so with the intent that they gain possession and ownership of the property; AND
  4. The Victim consented to Defendant obtaining the property because of the Defendant’s misrepresentations;

Theft by Trick

Theft by Trick consists of the following:

  1. The Defendant Obtained Property they knew was owned by someone else;
  2. The Defendant used fraud or deceit to obtain that property;
  3. The Victim consented to Defendant obtaining the property because of Defendant’s fraud or Deceit;
  4. When the Defendant obtained the property, they intended to deprive the owner of it for an extended period of time;
  5. The Defendant kept the property for any period of timevi;

Theft by Embezzlementvii

Theft by Embezzlement consists of the following:

  1. The Victim willingly gave the property to the Defendant based on a trusting relationship
  2. The Defendant used the property they were entrusted with for their own benefit;
  3. At the time the Defendant took the property, they intended to permanently deprive the true owner of the property.

As mentioned at the start of this section, whether the theft is considered petty or grand is determined by the value of the item that was taken. If the property is worth less than $950 the crime is considered a misdemeanor petty theft. If the value of the property taken is more than $950, it will be considered grand theft. Grand theft can be charged as either a misdemeanor or a felony. If the Defendant did not intend to commit a theft when they broke and entered into the building, the Prosecution must show they intended to commit a felony or the Defendant cannot be convicted of burglary.

What is a Felony?

The list of felonies is beyond the scope of this article, but a felony is any crime, which is punishable by incarceration for more than one (1) year. For purposes of this article, we will use the felonies that also trigger the Felony Murder Ruleviii:

  1. Arson
  2. Rape
  3. Robbery
  4. Kidnapping
  5. Murder

There are many felonies, the Prosecution simply has to prove that the Defendant intended to commit that felony when they broke and entered into the home.

Once the Prosecutor has proven every element of burglary to the jury beyond a reasonable doubt, the jury must then decide what degree of burglary the Defendant should be convicted of: First or Second.

What Is The Difference Between First And Second Degree Burglary?

The penalties associated with a first degree burglary and a second degree burglary are very different. A first degree burglary is a felony, and even triggers the Felony Murder Ruleix. Any burglary that is not a first degree burglary is considered a second degree burglaryx, and is treated as a “wobbler offense”, which means the Prosecutor can choose to bring the charges against you as either a misdemeanor or a felony. This determination will be based on the Defendant’s age, whether or not anything was actually taken, whether a felony was actually committed, the type of felony committed or intended, the value of the property taken, and intended to be taken, the Defendant’s prior criminal record, and several other factors.

A person will be found guilty of First Degree Burglary when the building the broke and entered into was an inhabited dwelling. Many buildings can be considered an inhabited dwelling. Further, rooms in a house are considered an inhabited dwelling if the house itself is an inhabited dwelling. Any building where someone lives, or intends to return to for the purpose of living, is an inhabited dwelling for purposes of burglary.

If the building was not considered an inhabited dwelling, the Defendant can only be convicted of Second Degree Burglary. As mentioned above, this is a “wobbler offense” in California

I Have Been Convicted Of Burglary, What Penalties May I Be Facing?

As mentioned above, there are two degree of burglary, the distinction determines the form of the charge, and the penalties associated with a conviction. A first degree burglary is always a felony regardless of whether or not the inhabitants of the building were actually there at the time of the crime. A second degree burglary can be treated as either a misdemeanor or a felony offense; this determination is based on the specific facts of the Defendant’s case.

If you are convicted of Felony First Degree Burglary, you will face incarceration in California Prison for a period ranging from two(2), four (4), or six (6) years and/or a fine not exceeding ten-thousand ($10,000) dollars. Depending on the facts of your case, a First Degree Burglary may constitute a “strike” pursuant to California’s Three Strikes Law.

California’s Three Strikes Law applies enhanced penalties for repeat offenders who commit “violent felonies.” A First Degree Burglary could be considered a violent felony if certain events occur. If this is your second “strikeable” offense, California law authorizes the imposition of up to double the statutorily allowable sentence. As a practical matter, if this is your second “strike”, you could face incarceration for a period of four (4), eight (8), or twelve (12 years in state prison. If you are receiving your “third strike”, the Court is authorized to impose a penalty of twenty-five (25) years in state prison, all the way to a sentence of life in prison.

If you are convicted of Misdemeanor Second Degree Burglary, you will face incarceration in county jail for a period not exceeding one (1) year and/or a fine of up to one-thousand ($1,000) dollars.

If you are convicted of Felony Second Degree Burglary, you will face incarceration in state prison for a period ranging from sixteen (16) months to two (2), or three (3) years and/or a fine of up to ten-thousand ($10,000) dollars.

I Have Been Accused Of Burglary In California, What Can Los Angeles Criminal Lawyer Do For Me?

As mentioned at the outset of this article, if you or a loved one has been accused of burglary, it is imperative that you contact Los Angeles Criminal Lawyer immediately. Contacting an attorney immediately after you have been accused of a crime gives you the best opportunity to thoroughly and accurately recount the events that led up to the accusation, it also provides your LACL attorney the maximum amount of time possible t handcraft a defense for you and your case. All Theft Crimes are crimes of moral turpitude, and that will have a significant impact on your future in a number of ways. First, in the event that you are ever facing criminal charges in the future, the Prosecution may introduce a prior conviction to the jury, this will make defending your case in a jury trial infinitely more difficult; the Prosecutor will also use this information as leverage in attempting to convince you to a agree to a less-than-ideal plea bargain. Second, all criminal convictions appear on a criminal background check, which is routinely checked by employers who are considering hiring potential candidates for their business. A conviction for a theft crime frequently causes employers to look at other candidates, without theft convictions on their record. Third, many licenses require a showing of moral character, and convictions for theft crimes frequently raises red flags; current licenses you hold may be affected by a conviction as well. Finally, if you are convicted of First Degree Burglary, and there are facts surrounding your case that make it a “violent felony”, you may be facing additional penalties as a result of the California Three Strikes Law.

The attorneys at Los Angeles Criminal Lawyer have decades of combined experience representing clients in situations similar to yours, with their entire lives on the line. At Los Angeles Criminal Lawyer, we understand how frightening it can be to be accused of criminal conduct, especially when the consequences can be so severe. From your first consultation with Los Angeles Criminal Lawyer until the completion of your case, our skilled attorneys will be available to you 24/7 to provide you status updates on your case, the strengths and weaknesses of your defense and the Prosecution’s case, and what to expect going forward. Once we have tailored a defense unique to you, your LACL attorney will approach the District Attorney and attempt to have the charges against you dismissed or reduced. In a Burglary case, a reduction of charges can be the most beneficial outcome possible, sparing you from the more severe consequences of a felony conviction. If that is unsuccessful, your LACL attorney will utilize their years of experience in the courtroom to present your case in an effective and professional manner, raising all manners of defenses including:

  • You did not break and enter into a building because you were invited
  • You did not commit a theft because of any of the defenses available in a theft case
  • You did not intend to commit a felony;
  • You were mentally incapable of forming the requisite intent
    • Head Trauma
    • Mental Disorder
    • Intoxication
  • You believed the structure was uninhabited
  • You are not the person who committed the crime

In the event that you are convicted of burglary, your attorney will fight vigorously to convince the jury that you did not commit a First Degree Burglary, and will fight to obtain a reduced sentence for you. The best thing you can do if you have been accused of Burglary is contact Los Angeles Criminal Lawyer today at 310-502-1314 for a FREE consultation.

i Thus defeating the argument that a burglary could not have happened because at the time the Defendant entered the dwelling, they did not have the intent to commit a theft or other felony. If the intent to commit a theft or felony occurs after the Defendant has entered the home, but requires the Defendant to enter another room, a burglary conviction will still stand.

ii The Judicial Council of California Advisory Committee on Criminal Jury Instructions has drafted and approved jury instructions for every crime set forth in the California Penal Code (“CALCRIM”). Attorneys will frequently submit their own jury instructions, but the CALCRIM instructions provide excellent guidance as to what the Prosecution must prove in order to obtain a conviction.

iii In re Amber S. (1995) 33 Cal.App.4th 185 [39 Cal.Rptr.2d 672]

iv Id.,

v "Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space); the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary.'” (Valencia, supra, 28 Cal.4th at p. 11, 120 Cal.Rptr.2d 131, 46 P.3d 920)

vi For a detailed analysis of each crime of theft, See our pages on Grand Theft and Petty Theft

vii For a detailed analysis of Embezzlement, See our page on Embezzlement

viii Excluding Burglary itself, this is only a felony if it is First Degree burglary.

ix The Felony Murder Rule holds that if someone dies during the commission of specific felonies, the Defendant can be charged with murder as well. These crimes are (1) Burglary, (2) Arson, (3) Rape, (4) Robbery; and (5) Kidnapping

x If the structure is a commercial building, during normal business hours, the crime is shoplifting. For more information on shoplifting, See our page on Shoplifting.