The crime of burglary has origins in the common law traditions of England and the United States. Those traditions have added meaning and complexity to the California statutes that define burglary. Attorney Richard M. Oberto has been able to draw on the common law traditions as well as recent legal developments to achieve the best results for his clients.

Essential Elements of Proof

The crime of burglary under California law requires two main elements of proof. First, the accused person must have entered a structure or place that is recognized under California law as a target of burglary. Penal Code section 459 provides a list of such structures and places. The targets include a building, room within a building, and locked vehicle, but may include other structures and places as well. Second, the accused person must have entered the target structure or place with the intent to commit theft or a felony crime.

First and Second Degree Burglary

California law defines two degrees of burglary: First and Second Degree. First Degree Burglary is commonly called Residential Burglary while Second Degree Burglary is commonly called Commercial Burglary. First Degree Burglary is a felony offense and qualifies as a Strike under California’s Three Strikes Law. Second Degree Burglary is a “wobbler” offense, which means it can be charged as a felony or misdemeanor.

First Degree Burglary requires proof that the accused person burglarized an inhabited structure or place. Penal Code section 460(a) provides a list of structures and places that qualify as targets of First Degree Burglary. The list is broad enough to include watercraft, mobile homes, and rooms within buildings, provided that the structure or place is inhabited. Although freestanding structures such as sheds and garages might be located on a residential property, they do not qualify as targets of First Degree Burglary if they are not inhabited and not attached to the home.

Second Degree Burglary includes all burglaries that do not fall within the definition of First Degree Burglary. Most cases of Second Degree Burglary allege that a person entered a store or forcibly entered a vehicle with the intent to steal.

Misdemeanor Shoplifting

A crime that otherwise would qualify as Second Degree Burglary is treated in certain circumstances as Misdemeanor Shoplifting under Penal Code section 459.5. The misdemeanor charge generally applies when a person is accused of entering a commercial building during regular business hours with the intent to commit larceny of property worth no more than $950.

A person who has a prior conviction for a “serious” or “violent” felony under California’s Three Strikes Law or for a registrable sex offense is not eligible for a charge of Misdemeanor Shoplifting. The person is subject to the ordinary charge of Second Degree Burglary.


A structure or place must meet certain structural and functional criteria to qualify as a target of burglary. From a structural standpoint, it generally must have four walls and a roof. From a functional standpoint, it generally must be the type of place where people live, visit, or spend time and expect to be free from unauthorized intrusions.

Burglary of a Vehicle

Burglary of a locked vehicle requires an element of force. A person might enter a vehicle through a wide open window or unlocked door so that no forced entry is necessary. In such cases, the evidence would be insufficient to support a burglary charge.

Punishments for Burglary

First Degree Burglary carries a punishment of two, four, or six years in prison. The court is restricted from granting probation and a suspended sentence upon conviction for First Degree Burglary, unless the case presents unusual circumstances that justify those actions. A person who committed First Degree Burglary while someone was home is subject to additional punishment provisions that apply to “violent” felonies. A person convicted of a violent felony is entitled to fewer prison time credits and may be subject to more punitive enhancement allegations.

Second Degree Burglary carries a potential imprisonment term of 16 months or two or three years or up to one year in the county jail. A conviction for Second Degree Burglary does not restrict a person’s eligibility for probation and a suspended sentence.

Expert Legal Representation

The elements of proof in burglary cases frequently raise complex technical questions and complex issues of law and fact. Mr. Oberto is well-versed in the applicable legal doctrines. He is always honored to be able to use his expertise to assist his clients.

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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