Orange County & Los Angeles
Burglary Defense Attorney
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The Short Answer
Burglary under Penal Code 459 is entering a structure with intent to commit theft or any felony inside, and no one has to be home and nothing has to actually be taken. First degree (residential) burglary is a felony and a strike carrying up to six years; second degree (commercial) is a wobbler. Because the whole charge turns on your intent at the moment of entry, which prosecutors have to prove, burglary is far more defensible than it looks, and it is frequently reducible to trespass or theft.
Burglary is one of the most misunderstood charges in California. People picture a masked break-in, but the law is far broader: walking into an open store intending to shoplift, or entering a garage or a car to take something, can all be charged as burglary. Critically, the crime is complete at the moment of entry with the wrong intent, which is exactly why intent is the whole battleground.
Farris Law Firm defends burglary cases across Orange County and Los Angeles, and we understand how often these charges are overfiled. We have reduced serious felonies to misdemeanors and dismissed cases outright, and burglary charges are strong candidates for both.
How California Charges Burglary
First degree burglary (PC 459/460(a))
Burglary of an inhabited dwelling: a house, apartment, or occupied structure. Always a felony and a strike, carrying 2, 4, or 6 years.
Second degree burglary (PC 460(b))
Burglary of any other structure, like a store or business. A wobbler that can be charged as a felony or misdemeanor.
Auto burglary (PC 459)
Entering a locked vehicle intending to steal or commit a felony. The locked element is often the defense.
Commercial burglary vs. shoplifting
Since Prop 47, entering an open business intending to steal $950 or less is shoplifting (PC 459.5), not burglary. Prosecutors still overcharge it, and pushing it back down matters.
Possession of burglary tools (PC 466)
A misdemeanor often charged alongside burglary that rises or falls on intent.
Penalties for a Burglary Conviction
Residential burglary is a strike with lasting sentencing consequences, which is why the degree and the charge itself must be fought, not just the sentence.
| Charge | Level | Exposure |
|---|---|---|
| First degree (residential) | Felony (strike) | 2, 4, or 6 years state prison |
| Second degree (commercial) | Wobbler | Up to 1 year jail, or 16 months to 3 years as a felony |
| Auto burglary | Wobbler | Up to 1 year jail, or 16 months to 3 years |
| Shoplifting (Prop 47) | Misdemeanor | Up to 6 months jail; the goal in many miscoded cases |
Defenses That Work in Burglary Cases
Burglary requires entry plus intent to commit a crime inside at the time of entry. Both elements are attackable:
- No felonious intent at entry: if the intent formed later, or never existed, it is not burglary
- Mistaken identity: burglary cases lean on shaky IDs, partial video, and circumstantial evidence
- Consent or right to enter: entering a place you were allowed to be defeats the charge
- Prop 47 reclassification: forcing miscoded shoplifting cases back down from burglary
- The structure or vehicle was not locked or did not qualify under the statute
- Suppression of unlawful searches and identifications that produced the evidence
Frequently Asked Questions
Can I be charged with burglary if I did not actually steal anything?
Yes, and this shocks people: burglary is complete the moment you enter with the intent to commit theft or a felony, whether or not you succeed or take anything. That also cuts the other way as a defense, because prosecutors must prove what you intended at the instant of entry, which is rarely as clear as the police report claims.
What is the difference between burglary and robbery?
Robbery is taking property from a person by force or fear. Burglary is entering a structure intending to commit a crime inside, with no victim required to be present. They are completely different charges with different defenses. Our guide on robbery versus burglary breaks it down in detail.
Is burglary always a felony?
No. First degree residential burglary is always a felony and a strike, but second degree (commercial) burglary is a wobbler that can be a misdemeanor, and many cases that should be charged as misdemeanor shoplifting under Prop 47 get overcharged as burglary. Reducing the charge level is often the core of the defense.
The police say I was on camera near the scene. Is that enough to convict me?
Not by itself. Being near a location is not entering it with felonious intent, and camera footage frequently helps the defense by showing what actually happened. Before accepting any offer, have a lawyer obtain and watch every second of the footage.
Charged or under investigation? Talk to a defense attorney tonight.
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