Entering a Structure
What is a “Structure” Protected by California’s Burglary Law?
A structure for the purposes of burglary includes a home and many other types of structures. It includes a room in a home, an apartment in a building, a shop, a barn, a stable, a tent, a vessel, a locked vehicle, a floating home, a railroad car, an aircraft, and any building attached to such a structure (like a garage or carport). However, a house’s unenclosed porch or a pole barn without walls is not a structure.
Note that while a room in a home can be a structure, a person who enters a single-family dwelling or a single apartment with multiple occupants with intent to steal does not commit multiple burglaries if he or she moves from room to room in the home or apartment and takes items from each room. However, separate apartments in one building would be different structures, and if a person enters each separate apartment, each entry would be a burglary.
What is “Entering” a Structure?
To be charged with burglary, you must enter the dwelling or other structure. This means that some part of your body or some object under your control must penetrate the building’s outer boundary, such as a door or wall, and includes a window screen or a second-floor balcony.
So if you walk through an open door, remove a screen from a window, or poke a flashlight into the structure, you have entered the structure for the purposes of California’s burglary law. You do not have to break in; that is, pick a lock, kick in a door, smash a window, or commit any other destructive act to get into the house. You also enter a house for purposes of burglary if you are invited into the home. If you enter, even if asked, with the intent to commit theft or a felony, you have committed burglary.
- Entering a Structure
- Intent to Commit a Crime
- First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
- Petty Theft and Grand Theft
- Burglary Distinguished from Other Crimes
- Defenses to Burglary Charges
Intent to Commit a Crime
Intent is critical to burglary. For burglary, you must enter a dwelling or structure with the intent to commit petty theft, grand theft, or any other felony (such as rape or kidnapping). If you have such an intent and you enter the structure, you have committed the crime of burglary even if you are not successful in stealing anything or committing the felony. If you went into a house intending to steal a grand piano and the occupants never owned a grand piano, you still committed burglary. Intent and entry are all that are needed.
On the other hand, if you enter a structure and form the intent to steal or commit a felony only after you get inside, you are not guilty of burglary. Intent before entry is key.
Intent may be shown from the circumstances of the crime or other evidence. For example, if you were caught carrying tools to pick a lock, had a lookout, or researched the resale value of grand pianos before you entered a house, that circumstantial evidence may be enough to prove intent.
- Entering a Structure
- Intent to Commit a Crime
- First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
- Petty Theft and Grand Theft
- Burglary Distinguished from Other Crimes
- Defenses to Burglary Charges
First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
Burglaries in California are either first-degree burglaries or second-degree burglaries. Under PC 460, first-degree burglary occurs when a person enters an inhabited dwelling house, vessel, floating home, or trailer coach. All other burglaries, such as a burglary of a shop, barn, or stable, are second-degree burglaries.
“Inhabited” for the purposes of PC 459 and 460 has a special meaning. It means “currently being used for dwelling purposes, whether occupied or not.” If you enter someone’s dwelling with the intent to commit theft or a felony, you have committed burglary even if the home has no people in it. It doesn’t need to be occupied; it need only be “inhabited.” If a house is no longer being used for dwelling purposes because of a natural or other disaster, it is still “inhabited” for the purposes of burglary. However, an abandoned home or vessel would not be considered inhabited.
First-degree or “residential” burglary is a felony, and the penalty is two, four, or six years’ imprisonment. It is a “strike” under California’s three-strike rule. Residential burglary includes the entry of an inhabited house, boat, hotel room, trailer coach, or other dwelling.
Second-degree or “commercial” burglary is a “wobbler” offense, meaning that the prosecutor can charge it as a felony or a misdemeanor, depending on the circumstances of the crime and the defendant’s history. If it is charged as a felony, the penalty is sixteen months, two years, or three years in a county jail or state prison. If charged as a misdemeanor, the penalty would be county jail incarceration for up to one year. For commercial burglary of a store to occur, the entry must occur outside of business hours (see Shoplifting below for thefts during business hours).
- Entering a Structure
- Intent to Commit a Crime
- First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
- Petty Theft and Grand Theft
- Burglary Distinguished from Other Crimes
- Defenses to Burglary Charges
Petty Theft and Grand Theft
Generally, grand theft is theft of something of more than $950 value. The value need be less if the item stolen is, for example, domestic fowl, fish, or certain crops. These items need only be worth more than $250. Grand theft also includes taking money or an item from the person of the victim or stealing a car or gun, regardless of the value of the thing taken.
Everything else is petty theft. For purposes of burglary, theft is theft. Whether you intended to commit petty theft or grand theft when you entered the structure (or a locked car), you are still guilty of burglary. Only the type of structure you entered (an inhabited dwelling or an uninhabited one) makes any difference to the degree of the crime. However, the type of theft you intended to commit may matter to sentencing or whether the prosecutor charges you with a felony or a misdemeanor for second-degree burglary.
- Entering a Structure
- Intent to Commit a Crime
- First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
- Petty Theft and Grand Theft
- Burglary Distinguished from Other Crimes
- Defenses to Burglary Charges
Burglary Distinguished from Other Crimes
California recognizes other types of crimes that are similar to burglary. However, the elements of the crimes are distinct. Some of these crimes are:
- Trespass. Trespass occurs when you willfully enter the property of another person without permission or consent of the owner or remain on the property after the owner tells you to leave. Trespass does not require that you have the prior intent to commit a theft or a felony. Entry without permission is the key to trespass. Simple trespass does not require that you enter a structure. However, if (1) you enter a dwelling or other residential structure without permission or remain after being told to leave and (2) someone is in the structure, you have committed aggravated trespass, which is treated as a more serious crime.
- Robbery. Robbery is a theft accomplished by means of force or the threat of force. Robbery does not need to occur in a structure (although it may) and does not require a pre-existing intent to steal. As long as you use force or a threat of force to take personal property from the victim’s person or immediate presence against his or her will, you have committed robbery.
- Shoplifting. Shoplifting is similar to commercial burglary, but shoplifting occurs during a store’s regular business hours when a person takes items worth $950 or less. If the items are worth more than $950, their taking is grand theft, as indicated below.
- Theft. Also called “larceny,” theft occurs whenever a person takes something that belongs to another person without the other person’s consent or permission and with the intent to deprive the owner of the item permanently. Grand theft occurs if the item or items were worth more than $950 (or $250 for certain fowl, fish, or crops), if the item or items were taken from an individual’s person, or if the item stolen was a gun or car. All other theft is petty theft.
- Entering a Structure
- Intent to Commit a Crime
- First-Degree and Second-Degree Burglary: Was the Structure Inhabited?
- Petty Theft and Grand Theft
- Burglary Distinguished from Other Crimes
- Defenses to Burglary Charges
Defenses to Burglary Charges
Several powerful defenses to burglary exist:
- The structure you entered is not a structure covered under burglary laws. Many structures on private property are protected by burglary laws, such as a barn or a henhouse. But as indicated above, if you enter, for example, an unenclosed porch or a pole barn with no walls, you have not committed burglary.
- You had no intent to steal before you entered the structure. Intent to take property must exist before you enter the dwelling or other building. If you did not form an intent to steal until after you entered the structure, you did not commit burglary.
- For a charge of first-degree burglary, the structure or building you entered was not “inhabited.” If, for example you enter an abandoned house, even with the intent to steal something in it, you have not committed first-degree burglary but only second-degree burglary. The degree makes a significant difference in sentencing.
- The crime you intended to commit was not theft or a felony. If you enter a structure with the intent to, for example, commit a misdemeanor form of vandalism or even misdemeanor assault, you would not be guilty of burglary, although you may be guilty of trespass (as well as the vandalism or assault, if accomplished).
Burglary can be a serious offense in California and can include jail time. If you have been charged with burglary, a skillful and experienced criminal-law lawyer may be able to have the sentence minimized or to reduce the offense charged. Contact an attorney immediately if you are charged with burglary.