Breaking and Entering - PC 459 & 602

Overview

California does not have a law simply called “breaking and entering.” Under California law, there is no specific “breaking and entering” crime. However, there are multiple crimes that involve breaking and entering a building or property, in which a perpetrator can be charged and convicted of. These crimes are associated with the phrase “breaking and entering,” and sometimes include those words in their legal definition. 

The two crimes that are the most commonly charged that involve breaking and entering are burglary and criminal trespass. 

Burglary - Penal Code 459

Under California law, burglary is a crime that is committed when someone enters a home or building with the intent to commit a felony or theft therein. 

A prosecutor must prove all the below elements beyond a reasonable doubt in order for you to be convicted for burglary. The elements are: 

1. the person entered any residential or commercial building or room, and
2. did so with the intent to commit a felony or a theft once inside

It is important to note that you don’t have to actually commit a felony or theft in the property to be convicted of this crime. The mere fact that you entered the property with the INTENT to commit a felony or theft inside is enough for a conviction. 

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Burglary in Degrees 

In California, there are two “degrees,” or levels, of burglary. 

First-degree burglary is the burglary of a residence. 

Second-degree burglary is burglary of any other type of structure (i.e. stores and businesses). 

There are also auto-burglaries, but that is not discussed here. 

Examples of Burglary 

Some examples of burglary include: 

• Breaking into a house with the intent to steal electronics and jewelry
• Entering a woman’s unlocked apartment with the intent to rape her
• Entering into a house to steal, but you don’t actually steal anything 

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Legal Defenses for Burglary 

Just because you are charged with burglary, whether a misdemeanor or felony, does not mean that you and your attorney cannot fight the charge. There are many good legal defenses that you can use, if the facts and circumstances apply to your case. 

• No intent to commit the underlying crime (felony or theft therein)
• Allowed to be in the property in which the underlying crime is committed 
• No intent to commit the underlying crime when ENTERING the other’s property 
• Consent to be on a person’s property, and/or
• No probable cause
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Penalties for Burglary 

Burglary can be treated as a misdemeanor or a conviction, depending on the degree of burglary, as well as the facts and circumstances. 

First-degree (residential) burglary is always a felony, and it is punishable by up to six years in state prison. 

Second-degree (commercial) burglary is a “wobbler” crime, which means that it can be treated as a misdemeanor or a felony. If it is a misdemeanor, it is punishable by up to one year in county jail. If it is a felony, it is punishable by up to three years in state prison. 

Criminal Trespass - Penal Code 602

A criminal trespass is committed when a person goes on someone else’s property without permission. 

A prosecutor must prove all of the elements beyond a reasonable doubt in order for you to be convicted of criminal trespass. The elements are: 

1. the accused entered, or remained, on someone else’s property, and
2. did so without permission or a right to do so

Additionally, the perpetrator must act willfully to be guilty of trespass. To act “willfully” means to commit an act willingly or on purpose. 

Examples of Criminal Trespass 

Some examples of criminal trespass include: 

• Going into another person’s unused garage without their consent
• Going into another person’s house without their consent, even if the house is unlocked and you don’t have the intent to steal anything 

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Legal Defenses for Criminal Trespass 

Just because you are charged with trespass does not mean that you and your attorney cannot fight the charge. There are many good legal defenses that you can use, if the facts and circumstances apply to your case. 

• No intent to commit a crime,
• Consent to be on a person’s property, and/or
• No probable cause.

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Penalties for Criminal Trespass 

The vast majority of criminal trespass convictions in California are misdemeanors. If you are convicted of a misdemeanor trespass charge, it is punishable by up to six months in county jail and/or a fine up to $1,000. 

Subsequent Civil Lawsuits  

It is important to remember that a  “victim” of burglary or trespass can file a civil lawsuit against the perpetrator. The plaintiff can do so to recover any damages suffered because of the crime, and the “victim” can sue regardless of whether you were found guilty or innocent in criminal court. Most of the time the damages are for property damage.