First Degree vs. Second Degree Burglary

Burglary, like Robbery, may be classified as either “first degree” or “second degree” depending on the facts of the case.

First degree burglary includes burglary of a home or other inhabited dwelling such as house boat or trailer home.  First degree burglary carries potentially more severe punishment than second degree burglary and qualifies as a “strike” under California’s Three Strikes Law.

Second degree burglary is the burglary of any other structure not included under first degree burglary.  Second degree burglary is a “wobbler” and can be charged as a misdemeanor or a felony.

Elements of Burglary

The prosecution must prove the following facts to convict a defendant of burglary:

• Entrance into a structure– “Entrance” occurs when any part of the defendant’s body or an object under his control enters the outer boundary of the structure; force is not required
• Intent– Defendant intended to commit at theft or some felony crime inside the structure and had that intent before or at the time of entering the structure

(** Defendant does not have to actually commit a theft or felony inside the structure.  He only needs to have intended to do so)

Punishment For Burglary

As with any crime, the potential punishment for burglary will vary based on the facts of the case, and can include:

First Degree Burglary:

• Two, four or six years in state prison
• A “strike” under California’s Three Strikes Law

Second Degree Burglary:

• Misdemeanor – Up to 1 year in county jail
• Felony – 16 months, 2 or 3 years in state prison.

Defenses To Burglary

Potential defenses to a charge of burglary will depend on the facts of the case, but often the defense will focus on the defendant’s intent when he entered the dwelling, building or structure.  If a defendant does not form the intent to commit a theft or felony inside the structure until after he enters, he has not committed a burglary.