Burglary under California Penal Code 459 is wider than most people think. It does not require breaking in. It does not require that anything was actually taken. What it requires is entering a building, a room, or a locked car already intending to steal or commit a felony. That one fact, your intent at the moment you crossed the threshold, decides the case. First-degree burglary of a home is a felony with up to six years in state prison and a strike. Second-degree burglary of a store or other building can be a misdemeanor or a felony. Here is how it works in 2026, and what it looks like in a Kern County courtroom.
What counts as burglary
Penal Code 459 lists the places: a house, room, apartment, shop, warehouse, store, barn, tent, boat, trailer, railroad car, a locked cargo container, an aircraft, a mine, and a vehicle when its doors are locked. Enter any of them with the intent to commit theft or any felony, and you have committed burglary. The entry can be through an open door. It can be with the owner’s permission. A guest invited to a party who walks in planning to take a watch from the bedroom has committed burglary before touching the watch.
Two things people get wrong:
- Force is not an element. Opening an unlocked side gate and stepping into a garage is an entry. So is reaching an arm through an open window.
- Completing the theft is not an element. The crime is finished the moment you enter with the intent. Someone who enters a home to steal, hears a dog, and leaves empty-handed has still committed burglary.
The flip side is what makes these cases defensible. The prosecutor has to prove what you were thinking when you entered. Not after. Not once you saw the laptop on the counter. Intent is usually proved by circumstances: tools, timing, a story that does not hold up, texts, or what you did once inside.
First degree and second degree
Penal Code 460 splits burglary by the type of place, not by what was taken or how.
| First-degree burglary | Second-degree burglary | |
|---|---|---|
| Where | An inhabited dwelling: a house, apartment, hotel room someone is staying in, boat used as a home, floating home, trailer coach, or the inhabited part of any building | Everywhere else: stores, offices, warehouses, barns, vacant homes, locked cars |
| Inhabited means | Someone currently lives there. It does not matter whether anyone was home at the time | Not required |
| Charge level | Felony, always | Wobbler: misdemeanor or felony |
| Sentence (PC 461) | 2, 4 or 6 years in state prison | Misdemeanor: up to 1 year county jail. Felony: 16 months, 2 or 3 years, usually in county jail under PC 1170(h) |
| Fine | Up to $10,000 | Up to $10,000 on a felony; up to $1,000 on a misdemeanor |
| Strike | Yes. A serious felony under PC 1192.7 | No |
Two things make residential burglary heavier still. If anyone other than an accomplice was in the home during the burglary, it is a violent felony under Penal Code 667.5, which limits the credits you earn in custody and increases sentences on any later case. And a home that is empty because the family is on vacation is still inhabited; a house that has been vacant for months, with no one living there, is not.
Example: A man in Oildale enters a neighbor’s house through an unlocked back door while the neighbor is at work and takes a television. First-degree burglary, felony, strike. A man enters a shuttered auto parts store on Union Avenue at 2 a.m. and takes the same television from the stockroom. Second-degree burglary, and the DA chooses between a misdemeanor and a felony.
Misdemeanor or felony: who decides on second degree
The DA makes the first call based on your record, the value, and the facts. Since January 1, 2026, under Assembly Bill 321, the judge can reduce a second-degree burglary charge from a felony to a misdemeanor at any time before trial, on the defense’s motion or the court’s own. Before that, the request usually waited for the preliminary hearing. A second request needs changed circumstances, so the first one should go in with restitution paid or arranged.
Auto burglary
Entering a locked vehicle to steal or commit a felony is burglary under the same statute. The word that matters is locked. Reaching into an unlocked car is theft, not burglary. Breaking a window or using a tool on a locked door is auto burglary, charged as second degree.
One 2026 change belongs here. Penal Code 466 makes it a misdemeanor to possess burglary tools with the intent to break into a building or car. The list has long included picklocks, crowbars, slim jims and bump keys. Under Assembly Bill 486, effective January 1, 2026, it now also includes key programming devices, key duplicating devices and signal extenders, the equipment used to copy or relay a key fob signal and drive a car away without touching a lock. Prosecutors add a PC 466 count when those tools turn up in a backpack or a trunk, even if no entry happened.
Burglary and shoplifting: the Prop 47 line
Before 2014, walking into an open store intending to steal was commercial burglary, and prosecutors charged it that way. Proposition 47 changed that for small cases. Under Penal Code 459.5, entering a store that is open for business, during business hours, intending to steal $950 or less is shoplifting, a misdemeanor, and it cannot be charged as burglary.
| What happened | Charge |
|---|---|
| Enter an open store intending to steal $950 or less | Shoplifting, PC 459.5 (misdemeanor) |
| Enter an open store intending to steal more than $950 | Second-degree burglary, PC 459 (wobbler) |
| Enter a closed store intending to steal anything | Second-degree burglary (wobbler) |
| Enter a home intending to steal anything | First-degree burglary (felony, strike) |
Proposition 36, passed in 2024, pulled some of that back. Under Penal Code 666.1, two or more prior theft convictions let the DA file a new shoplifting case as a felony, so the line between shoplifting, petty theft and grand theft under California law now depends on your record as much as on the $950 figure.
Related charges that come with a burglary case
A burglary filing rarely arrives alone. The ones most often charged alongside it:
- Trespass. Entering property without the intent to steal or commit a felony. Prosecutors fall back to it when intent is weak, and defense lawyers negotiate toward it.
- Grand theft or petty theft. For what was actually taken. Property over $950, or any firearm, is grand theft under Penal Code 487.
- Receiving stolen property. Charged under Penal Code 496 when the goods turn up with someone who was not the one who entered.
- Vandalism. For the broken window or pried door.
- Safe or vault burglary. Penal Code 464, a separate felony carrying three, five or seven years when a safe is opened with a torch or explosives.
Robbery is a different crime. It means taking property from a person by force or fear, and it is a violent felony. A burglary becomes a robbery the moment a resident is confronted and threatened.
Defenses that get burglary charges reduced or dismissed
- No intent at entry. You went in to sleep off a night out in what you thought was a friend’s garage, or to retrieve a jacket. If the decision to take something came after you were inside, it may be theft, but it is not burglary.
- Claim of right. You believed in good faith the property was yours. A tenant who goes back to a former apartment for a couch the landlord kept has a real argument.
- Wrong degree. The DA charged first degree on a building that was not inhabited, or charged burglary on a store that was open and a value under $950.
- Mistaken identity. Burglary cases often rest on a neighbor’s doorbell camera and a partial description.
- Illegal search. The tools or the property were found in a search the officer had no basis for. If the search goes, the evidence usually goes with it.
Burglary cases in Bakersfield and Kern County
Felony and misdemeanor burglary cases in Bakersfield are heard at the Kern County Superior Court Metropolitan Division on Truxtun Avenue. First-degree cases are filed as felonies from the start and move on a felony track with a preliminary hearing. Second-degree cases are where the early work pays off: the DA’s filing decision, a motion to reduce the charge, and whether the facts actually fit burglary or only trespass or theft. A completed probation term on a second-degree conviction can later be dismissed under Penal Code 1203.4, which is what people mean by expungement in California. A first-degree conviction cannot be dismissed that way if it ended in state prison.
Quick answers
Is burglary a felony in California?
First-degree burglary of an inhabited dwelling is always a felony. Second-degree burglary is a wobbler and can be charged as a misdemeanor or a felony.
What is the difference between burglary and robbery?
Burglary is entering a structure with the intent to steal or commit a felony. Robbery is taking property from a person by force or fear. The two are compared in detail in the post on the difference between burglary and robbery.
Can you be charged with burglary if you did not take anything?
Yes. The crime is complete at the moment of entry with intent. Whether the theft succeeded does not matter.
Can a burglary charge be expunged?
A second-degree conviction that ended in probation can be dismissed under Penal Code 1203.4 after probation is completed. A conviction that resulted in a state prison sentence is not eligible for that dismissal.
Charged with burglary in Kern County?
The degree, the intent evidence, and the DA’s filing choice are all decided early, and all three can be influenced before the first court date. If you or a family member has been arrested for burglary in Kern County, contact the Law Office of David L. Faulkner for a free consultation. We will tell you which degree actually fits the facts and what it will take to bring the charge down.
