What is an attempted burglary in California?

Under California criminal law, you are guilty of an attempted burglary if you:

1. intend to commit burglary, and
2. take some act towards committing the burglary (which can be theft or some other felony).

Examples of attempted burglary include:

• Tom sneaks to the front of his neighbor’s house with the intent to go inside and steal her diamond necklace, but he runs from the home after seeing a police car drive by.
• Jerome buys a knife and intends to rob a bank, but he stops short of the business after seeing three heavily armed guards.
• Lucile puts a hammer in her car and drives to her ex-boyfriend’s home with the idea to steal his sound system, but she drives off after seeing him approach the house with friends.

Under Penal Code 21(a), attempt is when you:

• • specifically intend to commit a certain crime, and
  • perform a direct act towards committing that intended crime.¹

Under Penal Code 459, a burglary is when you:

• enter any residential or commercial building or room, and
• do so with the intent to commit a felony or a larceny once inside.²

What is an attempted crime under Penal Code 21(a)?

PC 21(a) says that an attempt occurs when you:

• intend to commit a certain crime, and
• perform a direct act toward committing that crime.

You can even be guilty of attempt if you changed your mind about committing a crime and voluntarily abandoned all efforts to complete it. Only the intent and some act are necessary for a conviction.³

Two examples of an attempt are:

1. a man tries to commit the crime of rape against a woman, but she fights him off and escapes before he can actually engage in sexual intercourse with her, and
2. a man puts a gun through the window of a car and demands that the driver exit the vehicle—but the driver speeds away, preventing the man from completing the crime of carjacking.

What are the penalties for attempt?

For an attempt conviction, you generally will face a prison/jail sentence that is half as long as the sentence you would have received if you had been convicted of the underlying offense.

This is true regardless of whether you are convicted of an attempted misdemeanor or an attempted felony.

If the crime you are alleged to have attempted carries a sentence of life in prison or the California death penalty, then you could be sentenced to five, seven, or nine years.

If you are convicted of attempted murder that was willful, deliberate and premeditated, then you could be sentenced to life in prison.⁴

What is burglary under Penal Code 459?

PC 459 says that the crime of burglary occurs when you:

• enter any residential or commercial building or room, and
• do so with the intent to commit a felony or a theft once inside.⁵

Two examples of burglary are:

1. John enters a woman’s unlocked apartment with the intent to rape her in the bedroom, and
2. Manuel enters a bank with the intent to commit check fraud once inside.

Note, in the above examples, that the rape and check fraud did not have to actually occur for the burglary to take place. All that was necessary was the entering and the intent to burglarize. Also note that “breaking and entering” and “unlawful entry” are not elements of burglary. You can enter a place lawfully and still commit a burglary there.

What are the penalties for burglary?

California burglary law is divided into “first-degree burglary” and “second-degree burglary.” First-degree burglary is burglary of a residence / dwelling house – a.k.a. residential burglary. Second-degree burglary is burglary of any other type of structure (including stores and businesses) – a.k.a. commercial burglary.

First-degree burglary is a felony under California law. It is punishable by imprisonment in the state prison for:

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

Second-degree burglary is a wobbler offense in California, meaning it can be charged as either a misdemeanor or a felony.

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

If charged as a felony, the offense is punishable by a county jail sentence of:

• 16 months,
• two years, or
• three years.⁶

There are no third degree or fourth degree burglary charges under California state law (unlike Maryland and New York).

Additional reading

For more in-depth information, refer to these scholarly articles:

• From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
• Burglary – Crime & Justice article about trends in property crimes.
• Reformation of Burglary – William & Mary Law Review article on how burglary has evolved as a criminal offense.
• Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
• That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.

See also our related article on possession of burglary tools (PC 466).