Is Burglary A Felony? Burglary Charges and Defences

Is burglary a felony

Burglary is defined as entering a building, residence, or other structure with the purpose to conduct theft or a felony offense once inside under California Penal Code Section 459.
The specifics of your case will determine how you will be charged if you are suspected of burglary. Let’s look at when burglary is a felony crime and when it’s a misdemeanor.

What Is Burglary?

Burglary is committed when a person enters a building without authorization with the aim to conduct a crime, usually stealing, inside the building. Historically, burglary was defined as “breaking and entering” (forcibly entering another person’s home at night with the intent to conduct a felony inside). However, most states have abandoned these stringent standards.

Today, practically any type of building or structure, such as a store or warehouse, can be burglarized. However, in many areas, residential burglaries are punished more severely than other types of burglaries.

The Two Types of Burglary

To understand how the law differentiates between felony and misdemeanor burglary, you must first understand that California law divides burglary into two categories: first-degree burglary and second-degree burglary.

The main distinction between these two types of burglary is that first-degree burglary (also known as residential burglary) requires you to enter an inhabited residence, such as a home or apartment, with the intent to commit theft or another felony, whereas second-degree burglary (also known as commercial burglary) occurs when you enter any other type of structure.

When Does Burglary Become a Felony?

Burglary in the first degree is a felony. If convicted of first-degree burglary under PC 459, you might face up to six years in state prison and a $10,000 fine. Because of the nature of the offense, you must serve at least 85 percent of your sentence. Under California’s Three Strikes legislation, a conviction will also result in a strike on your criminal record.

Second-degree burglary is a wobbler offense, meaning it can be punished as either a felony or a misdemeanor. It is up to the district attorney’s discretion to decide how to charge you. You could be charged with a felony for commercial burglary for a variety of reasons, including:

  • You’re on probation right.
  • You have a criminal record.
  • You entered the property within 30 days of making a threat against the property’s owner or inhabitants.

Other circumstances will be considered by the prosecution before deciding whether to charge you with a felony or misdemeanor for second-degree burglary. If you are accused of burglary, you should contact our expert burglary defense attorneys so that we can try to persuade prosecutors to drop the charges and keep you from incurring harsh felony charges.

Second-degree burglary is a felony for up to three years in county prison and a $10,000 fine.

What is Felony Burglary?

The act of breaking into a building with the intent to commit a crime is known as felony burglary. Misdemeanor burglary, on the other hand, is defined as breaking into a building without the intent to commit a crime, and it is commonly applied to homeless persons who break into unoccupied buildings to sleep in. Previously, felony burglary needed a particular intent to conduct a felony, but newer legislation have widened the definition to include any crime. In several US jurisdictions, a person who does this conduct may additionally be charged with breaking into a structure that is likely to be occupied at the time, partially because it is considered a menacing act. The particular laws and penalties for this offense vary greatly across the country.

In general, the penalties for all distinct categories of felony burglary are graded. Aggravated burglary is normally classified as a first-degree felony, and it is defined by either the intent to do damage or the act of carrying dangerous weapons during the burglary. Breaking into a structure with the intent to commit a crime when someone is inside or is likely to be inside is commonly defined as second-degree felony burglary. Breaking into a structure when it is uninhabited or likely to be unoccupied is a third-degree felony, and breaking into an occupied structure without the intent to conduct a crime is a fourth-degree felony.

Felony burglary is widely seen as a serious offense. In many places, even fourth-degree burglary can result in jail sentences of up to 18 months, while aggravated burglary can result in prison sentences of up to 10 years, as well as relatively high penalties. Because of other offenses committed during the burglary, prison sentences can potentially be much greater, especially in aggravated burglary instances.

What Constitutes a Burglary?

A burglary occurs when a person enters a building without permission with the aim to commit a crime within. A prosecution must produce evidence on the following grounds and persuade a jury beyond a reasonable doubt on each of them to prove that a burglary occurred.

#1. Entering a Structure or Building

Previously, burglary rules only applied when someone broke into another person’s home or dwelling. The law now prevents anyone from entering any structure, not just a house. Many state laws specify the types of structures that count as a building in the case of a burglary. Stores, school buildings, houseboats, and even tents or campsites are examples. Some states additionally distinguish between commercial and residential burglary, with residential burglary punishable more severely. A home, apartment, or other structure in which a person’s life is required for residential burglary.

#2. Unlawful Entry

In addition, the prosecutor must show that the accused entered the building illegally or without authority. This generally indicates that the structure must be either private or public, but not open or otherwise publicly accessible.

Illegal entry also refers to a person who enters a public facility with the aim to conduct a crime inside, such as a person who walks into a store with the intent to steal products. The owner’s authorization is only granted to those who enter for genuine reasons, according to the justification. That permission does not apply when the thief enters for illicit motives. Entering a locked or banned place within a public building, such as an employee breakroom or an area marked as restricted to the public, is likewise illegal.

The defendant must additionally enter the building to commit the crime of burglary. The complete body does not need to enter; the offense still occurs whether the offender only reaches into a building or uses an instrument to gain unauthorized entry.

#3. Using Force

In certain areas, burglary also includes “breaking” into a building. Although the word indicates a forceful entry (such as picking a lock or smashing a window), any sort of unlawful entry—however minor—is sufficient to meet this condition. For example, opening a door or lifting an unlocked window is sufficient to meet the use-of-force criteria.

In reality, many states have dropped the need that the defendant to break into the house. Thus, freely walking through a store entry with the intent to take products can be considered a burglary (see “Illegal Entry,” above).

#4. Intention to commit a felony or commit theft

A prosecution must prove that the offender unlawfully entered the building with the intent to commit a felony or theft in order to convict them of burglary. A person convicted of burglary typically plans to enter the building with the aim to steal something, but it is also burglary if the individual enters illegally with the intent to commit felony assault or felony property damage.

In general, the person must have the intent to conduct a crime before to or at the time of entry. When a person enters a building without intending to conduct a crime but later does so, there is no burglary. If a person arrives at a BBQ with no unlawful intentions but subsequently decides to grab cash from a counter, the individual has committed theft but not burglary. Also, burglary occurs when a person enters a building with the purpose to steal but later changes his mind or is apprehended before doing the intended crime. The intent to commit a crime, not the crime itself, is what counts.

Prosecutors often prove criminal intent based on the facts of the case. They are not required to show exactly what was going through the accused person’s thoughts at the time. For example, a homeowner returns home to discover her TV torn from the wall and witnesses someone moving the TV into a van behind her house. She contacts the cops, who hunt down the van and suspect, and discover many TVs, lock picks, and crowbars in the van. In this case, the jury would almost certainly conclude that the suspect entered the residence (and possibly other houses) with the intent of stealing a television.

#5. Ownership of Burglary Tools

Simply possessing equipment used in burglaries is a criminal under California Penal Code 466. Possessing burglary tools is a misdemeanor in California, even if no burglary was committed. Burglary equipment can include:

  • Lockpicking instruments,
  • Crowbars,
  • Screwdrivers,
  • Using vice grips,
  • Slim jims,
  • Bump key
  • Master keys.

In general, having these instruments for a legitimate reason may be a defense to charges of possessing burglary tools. For example, a locksmith may be required to carry lock-picking tools while on the job, and a construction worker may be required to carry tools such as screwdrivers or vice grips in their tool belt.

Burglary Attempt Charges

Burglary requires simply the intent to conduct a felony or steal. Even if the offense is never carried out, simply entering the building with the intent to commit a crime is enough to warrant a burglary prosecution.

A thief, for example, enters a jewelry store to steal some valuables. The burglar changes his mind after entering the store and exits. The thief may still be charged with burglary because he entered the building with the purpose to steal the jewelry.


Burglary offenses are serious crimes that are normally charged as felonies, while certain states permit misdemeanor burglary charges in specific circumstances. A burglary conviction can result in a variety of consequences, however the actual sentencing choices for burglary convictions vary greatly between states.

#1. Prison or jail.

Burglary convictions carry a variety of prison or jail penalties. A felony burglary conviction normally entails a prison sentence of more than one year in state prison. A felony burglary conviction might result in 20 years or more in jail, depending on the state and circumstances of the case. A misdemeanor burglary charge can result in up to a year in prison.

#2. Fines.

The burglary penalty can be substantial. A felony conviction for burglary might result in a fine of $100,000 or more, depending on the state. Misdemeanor penalties are often less than $1,000.

#3. Restitution.

Though a burglary can be committed without taking or damaging any property, a burglary that results in property loss or damage may also result in a restitution term. When a court directs you to pay restitution, you must compensate victims for their losses by allowing them to repair or replace damaged or lost property. Restitution is in addition to any penalty imposed by the court.

#4. Probation.

In burglary instances, probation sentences are sometimes issued. A judge can sentence a person to probation either independently of or in addition to a prison or jail sentence. When you’re on probation, you must follow all of the court’s orders or risk serving the original jail or prison sentence. For example, a person on probation is normally required to report to a probation officer on a regular basis, as well as submit to drug tests, home searches, and other conditions.

Defense Against Burglary Charges

There are a number of plausible defenses to burglary allegations. Entering a building may not be considered a felony if there was no intent to commit a felony or steal. For example, a hiker may be out in the mountains when a storm strikes. In order to wait out the storm, the hiker breaches the lock on a shed. The hiker broke inside the building, but he had no intention of committing any crime inside.

Mistaken identity is frequently included in burglary charges. A witness could have mistaken an innocent person for the burglar. This can be an issue if the burglary occurs at night and the burglar keeps his or her face hidden. If you are charged with burglary due to mistaken identity, consult with an attorney.

Entering a commercial building to steal items is commonly referred to as shoplifting rather than burglary. Shoplifting is typically a smaller violation with less severe sanctions. The distinction between stealing and burglarizing a store is that the former entails entering an open business with the intent to steal products worth $950 or less. Entering the business after it has closed may be considered a burglary.

If you are facing burglary accusations in California, consult with a criminal defense attorney about your case. Your attorney will examine your case, discover the best defenses, and fight to keep you out of jail.

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