Burglary is an illegal entry into an inhabited dwelling—a house, room, apartment, or even a tent, commercial establishment, or any inhabited mobile home or RV—with the intent to commit a theft (grand or petit larceny) or any felony. To establish the elements of burglary, there must be a physical entry as well as evidence of an intent to commit a theft or a felony. The underlying crime, however, need not be completed in order for the accused to be convicted of burglary.
Burglary charges are governed by California Penal Code § 459. Burglary in the first-degree is limited to an illegal entry into an inhabited structure as described above. Burglary in the second-degree is used when there is an illegal entry into a commercial structure or locked vehicle and can be charged as a felony or misdemeanor. Residential burglary in the first degree is a felony and a strike under California’s “Three Strikes” law. Sentences are harsh. A conviction for first-degree burglary can be punished by imprisonment in state prison for two, four, or six years.
An inhabited dwelling is a place where someone sleeps or lives. In addition to the more conventional places, such as a house, apartment, tent, or RV, a dwelling might include virtually any structure wherein a person resides. The fact that a dwelling was abandoned and is no longer inhabited may be a defense against a charge of burglary. However, abandonment does not apply if the dwelling was vacated due to a natural disaster.
The elements of first-degree burglary are:
- Illegal Entry: The act of burglary into a residential structure can occur without breaking in. An illegal entry may be established by entering, without permission, via an unlocked door or open window, by the use of force or coercion, or through the threat of force or blackmail.
- Dwelling or Structure: To commit the act of burglary in the first-degree, the structure must be a dwelling. As stated above, this might include a house, apartment, tent or RV. Although the inhabitant need not be present, the dwelling cannot be abandoned.
- Intent to Commit a Crime: Although the crime need not be accomplished, there must be evidence that the purpose of the illegal entry was to commit a theft or any felony.