Burglary isn’t just one charge. The law draws a sharp line between first and second degree, and that distinction changes everything about how the case is prosecuted, what penalties you’re facing, and whether a conviction follows you for the rest of your life. If you’ve been charged with burglary, the degree matters more than most people realize.
How the Law Defines Burglary
Under Penal Code 459, burglary occurs when a person enters a building, room, or other structure with the intent to commit theft or any felony inside. The key word is intent. You don’t have to successfully steal anything. You don’t even have to attempt it. If the prosecution can prove you entered with the intent to commit a crime, that’s enough.
Our friends at Seyb Law Group handle burglary cases at every level and know that the intent element is often where the strongest defenses begin. What you were thinking when you walked through the door isn’t always as clear as the prosecution wants a jury to believe.
First Degree Burglary
First-degree burglary applies to the burglary of an inhabited dwelling. That includes houses, apartments, hotel rooms, houseboats, trailers, and any other structure where someone is living at the time of the offense. The dwelling doesn’t need to be occupied at the exact moment of entry. If someone lives there and happens to be away, it still qualifies as inhabited.
This is always charged as a felony. The penalties include two, four, or six years in state prison. And because residential burglary is classified as a serious felony, a conviction counts as a strike under the Three Strikes law. That single conviction can double the sentence on a future felony charge and dramatically limit your options down the road.
Second Degree Burglary
Everything that doesn’t qualify as first degree falls into second degree. That covers commercial buildings, stores, warehouses, offices, and other non-residential structures. It also includes vehicles, if the entry was made with intent to commit theft.
Second-degree burglary is a wobbler, meaning the prosecution can file it as either a misdemeanor or a felony depending on the circumstances and your criminal history. As a misdemeanor, it carries up to one year in county jail. As a felony, it can result in 16 months, two years, or three years in county jail. It does not count as a strike offense, which is a significant difference from first degree.
Why the Distinction Matters for Your Defense
The gap between first and second degree isn’t just academic. It’s the difference between a strike on your record and a charge that may be reduced to a misdemeanor. A burglary lawyer who understands how the prosecution classifies these cases can challenge the degree of the charge, argue that the structure wasn’t inhabited, or question whether intent was actually present at the time of entry.
If you’re facing a burglary charge, the degree will shape your defense strategy, your plea options, and potentially the rest of your future. Talk to a defense attorney who can evaluate the facts and fight for the outcome you deserve.