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Law School Help: California Criminal – Burglary

In today’s post, I’m going to go over the California crime of Burglary. In this series of posts that I’ve, apparently, labeled “Law School Help,” I’m going to try and go over terms (e.g. common criminal offenses) that ordinary people might have heard and provide a basic description of the legal authority (e.g. the particular statute section), the elements involved, and any sentence that the offense in question might carry.

In prior posts, I’ve gone over questions like “What is Consideration?” and “What is a Common Carrier?” If you’re a law school student and you’re reading this, hopefully this series of posts provides you more real-world or practical knowledge compared to the more abstract or theoretical concepts you’re learning about in the classroom.

In California, the crime of burglary is defined in Section 459 of the Penal Code. Section 459 is a bit long, but it says the following:

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”

I’ve bolded and underlined the major portions of the statute. If you’re a law school student, this should look familiar to you as the burglary criteria or elements you were taught, namely:

  • Entering a structure of some kind. The majority of what I have bolded above lists out examples of structures that count, and either
  • (1) With the intent to commit a grand or petit larceny, or (2) with the intent to commit any felony.

California also has degrees of burglary and those are defined in Section 460(a) and (b) of the Penal Code which say:

“(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.”

The basic differentiator between first and second degree burglary is whether the structure in question is intended or designed for human habitation. If it is, it’s first-degree burglary. If it isn’t, then it’s second-degree burglary.

Sentences for burglary:
Not surprisingly, the sentence you get for burglary varies depending on the degree. If it’s first-degree burglary, then sentence is described in Section 461 of the California Penal Code, which states:

“Burglary is punishable as follows:

(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.

(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”

First-degree burglary in California is always a felony, as you can tell by the mandatory 2, 4, or 6 year state prison term. Second-degree burglary can be either a misdemeanor and carry a county jail term not exceeding one year or it can be a felony and be punished under Section 1170(h) of the Penal Code. Section 1170(h) is fairly long and involved so I encourage you to read it. A very common sentence under Section 1170(h) — specifically, 1170(h)(1) — is a state prison term of either 16 months, 2 years, or 3 years.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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