California Penal Code 459 PC defines burglary as entering a room, structure or locked vehicle to commit a felony or a petty theft inside. In order for the prosecutor to convict the defendant of a burglary, the following legal elements must be proved:

  • The defendant entered the room, building or broke into a locked vehicle, and
  • At the time the defendant entered the locked building or other structure s/he had the intention to commit a crime inside.

California Penal Code 460 PC separates burglary into first and second degree burglary.

First degree (residential) burglary

First degree burglary is used to refer to residential burglary. It is more serious than the second degree and is always considered a felony. The law states that the defendant committed first degree of burglary if s/he burgles any inhabited dwelling.

Second degree (commercial) burglary

Second degree burglary refers to commercial burglary which encompasses every type of structure other than places where people live. This degree of burglary is mostly seen in connection with Penal Code 484 “shoplifting”.

If the first degree burglary is considered a felony, the second degree burglary in California is a wobbler, which means that it can be charged either as a felony or a misdemeanor. This is up to the prosecutor’s discretion.