The crime of burglary is committed when someone enters the private property of another, like a house, car, boat or commercial business with the intent to commit a theft or other felony.  The crime of burglary is set forth in California Penal Code §§458-464.  Burglary can be charged as burglary in the first or second degree and according to Penal Code § 461, burglary in the first degree is punishable by imprisonment in the state prison for two, four or six years.  Second degree burglary is punishable by imprisonment in the county jail for a period not to exceed one year.  Penal Code § 462 (a) states that “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach …, an inhabited floating home …, or inhabited portion of any other building.”

       Penal Code § 459 states, in part that:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel …, floating home …, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach …, any house car …, inhabited camper …, vehicle …, when the doors are locked, aircraft …, 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. …

       Penal Code § 464 states, in part that:

Any person who, with intent to commit crime, enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of acetylene torch or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or by use of nitroglycerine, dynamite, gunpowder, or any other explosive, is guilty of a felony and, upon conviction, shall be punished by imprisonment … for a term of three, five, or seven years.

       Recent decisions by the California Supreme Court have further clarified what is, and what is not a burglary under California law.

       In the case of Magness v. Superior Court (2012) 54 Cal.4th 270, the Supreme Court held that using a remote control to open a motorized garage door, without actual entry by some body part, was insufficient to charge the Defendant with burglary under Penal Code § 459.  This decision reconfirmed the long standing rule that there must be some physical entry into the building by a body part or physical instrument of some kind for a burglary to occur.  Here, an electromagnetic transmission was not enough.  Had the Defendant then actually entered the garage, a burglary would have been committed.  The Court ruled that the Defendant could, at most, be charged with attempted burglary, but not actual burglary itself.

       In another case that further defined the physical boundaries of a building, the Supreme Court in People v. Yarbrough (2012) 54 Cal.4th 889 ruled that the Defendant, who climbed onto a second story balcony that was surrounded by a four foot tall railing (but who did not enter the physical building itself) committed a burglary.  The Court reasoned that because the balcony was normally accessible only from inside the building, that it constituted an extension of the living space and as such, entry onto the balcony was tantamount to entering the actual building itself.

Possession of Burglary Tools

       Currently being drafted. Please check back later.


To view the list of crimes by code section (Statute), please click here.

To return to the list of California crimes in alphabetical order, please click here.


Contact Us
For A Free Consultation

Contact Us
Please enter your name!
Please enter your email!
Write your message!
* Required fields


Centrally Located In Orange County