Is burglary a felony or a misdemeanor in California?

First-degree burglary (which is burglary of a residence) is always a felony in California.

Second-degree burglary (which pertains to any non-inhabited structures) is a wobbler, meaning it can be charged as either a misdemeanor or a felony.

Burglary offense	California penalties
1st-degree burglary: Burglary of a residence	felony: 2, 4, or 6 years prison
2nd-degree burglary: Burglary of a non-residence (“commercial burglary”) Auto-burglary	misdemeanor: 1 year in jail or felony: 16 months, 2 years, or 3 years in jail.1

1. What is burglary per California Penal Code 459?

Penal Code 459 PC says that a burglary is committed when:

1. the defendant enters either a building, room within a building, locked vehicle, or structure,
2. at the time of entering that building, room, vehicle, or structure, he intended to commit either a felony or a theft, and
3. one or more of the following three things is true:

• the value of the property that the defendant stole or intended to steal was more than $950,
• the structure that the defendant entered was not a commercial establishment, or
• the structure that the defendant entered was a commercial establishment, but the defendant entered it outside of business hours.²

Please note that an accused is guilty of burglary when he enters a structure intending to commit a felony or theft offense. There is no requirement that he actually succeeds in committing that felony or theft.

2. What is first-degree burglary under California law?

California criminal law says that first-degree burglary is burglary of a residence. “Residences” here may include any of the following:

• a house,
• an inhabited boat,
• an inhabited trailer, and/or
• an inhabited motel or hotel room.³

First-degree burglary is always charged as a felony in California. See our article on the difference between residential and commercial burglary in California.

Some examples of first-degree burglary are:

• John enters his neighbor’s home with the intent to kidnap the owner.
• Michelle climbs aboard her ex-boyfriend’s floating home with the intent to willfully commit the crime of arson.
• Phillipe breaks into a woman’s hotel room with the intent to commit rape.

The crime is punishable by imprisonment in the California state prison for:

• two years,
• four years, or
• six years.⁴

3. What is second-degree burglary under California law?

California criminal law says that second-degree burglary is the burglary of any structure other than a residence.⁵

The crime is a wobbler offense in California, meaning it can be charged as either a felony or a misdemeanor depending on:

• the facts of a given case, and
• the defendant’s criminal history.⁶

If charged as a felony, the offense is punishable by imprisonment in the county jail for:

• 16 months,
• two years, or
• three years.⁷

If charged as a misdemeanor, the crime is punishable by imprisonment in the county jail for up to one year.⁸

4. Are there legal defenses to burglary charges?

No matter if the burglary charges are filed as a felony or a misdemeanor, a defendant can raise a legal defense to challenge the charge.

A strong defense can work to reduce a charge or dismiss it altogether. Please note that an experienced criminal defense attorney will know the best defense to raise on a person’s behalf.

There are three common burglary defenses that lawyers often raise. These are:

1. while the defendant may have entered a home or building, he did not have the intent to commit a crime,
2. if the defendant stole items inside a home or building, they were not over $950 in value, and
3. the defendant was arrested without probable cause.⁹

5. Is shoplifting considered burglary under California law?

California criminal law says that shoplifting is a different offense than burglary. Per California Penal Code 459.5, shoplifting occurs when a defendant:

1. enters a commercial establishment,
2. does so while that establishment is open during regular business hours, and
3. enters with the intent to steal property that is worth less than $950.¹⁰

So, in other words, shoplifting is a subset of burglary, where the defendant enters an open store or other business with the intent to steal $950 or less worth of merchandise.

For most defendants, shoplifting is charged as a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a fine of up to $1,000.¹¹

6. What about the California crime of theft?

Theft is a different crime than burglary under California criminal law. People commit the offense when they wrongfully take or steal someone else’s property when the property’s value is $950.00 or less.¹²

Petty theft is a misdemeanor punishable by probation, fines, restitution, and up to 6 months in county jail.

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