First & Second Degree Burglary California: Main Differences

In California, burglary charges hinge on the prosecution proving specific elements: unauthorized entry and the intent to commit theft or a felony at the time of entry.

Below are common defense strategies, their definitions, and real-world examples that illustrate their effectiveness.

Mistaken Identity

Mistaken identity occurs when a defendant is wrongly accused due to errors in recognizing or identifying them as the perpetrator. Eyewitness testimonies can often be flawed, especially under stressful or poor visibility conditions.

Scenario: A defendant is accused of breaking into a home based on an eyewitness report. The prosecution’s case heavily relies on the testimony of a neighbor who claims to have seen the defendant at the scene.

Defense Approach: The defense can challenge the reliability of the identification by presenting an alibi, questioning the accuracy of the eyewitness’s account, or showing that conditions such as poor lighting or distance impaired their ability to identify the defendant.

Real Case Outcome: In People v. Foster, a conviction was overturned when the victim expressed uncertainty about identifying the defendant during the trial. This doubt created reasonable suspicion, resulting in a successful appeal.

Lack of Intent

Burglary requires the intent to commit theft or a felony at the time of entry. Demonstrating that the defendant entered for lawful purposes can invalidate the charge.

Scenario: A defendant enters a commercial property to retrieve personal belongings but is accused of burglary due to unauthorized entry.

Defense Approach: The defense can argue that the defendant did not intend to commit theft or any other crime. Evidence such as witness testimony or proof of legitimate intent, like retrieving personal items, can challenge the prosecution’s claims.

Real Case Outcome: In People v. Woods, the defendant claimed no intent to steal when entering a laundry room. However, tampering with property undermined this defense. Stronger evidence of innocent intent could have altered the case outcome.

Consent Defense

If the defendant had permission to enter the property, this can serve as a defense against burglary charges. Consent can be explicit or implied but must be proven through evidence like written agreements, prior arrangements, or witness testimony.

Scenario: A defendant enters a friend’s apartment unannounced, believing they have permission to be there. Later, they are charged with burglary after taking items.

Defense Approach: The defense can argue that the defendant had consent to enter. Communication records, such as text messages or verbal agreements, can be presented to demonstrate permission.

Real Case Outcome: In People v. Hill, a burglary conviction was upheld due to insufficient evidence of consent. Proper documentation of consent could have resulted in a different judgment.

Illegal Search or Seizure

Under the Fourth Amendment, any evidence obtained through an unlawful search or seizure is inadmissible in court. This defense focuses on protecting defendants from violations of their constitutional rights.

Scenario: Police search a defendant’s home without a warrant or probable cause and collect stolen goods as evidence.

Defense Approach: The defense can file a motion to suppress the illegally obtained evidence. If the motion is successful, the prosecution’s case may weaken significantly, potentially leading to a dismissal.

Real Case Outcome: Cases involving successful suppression motions often result in dropped charges, as the prosecution cannot rely on inadmissible evidence to prove guilt.

Identification Errors

Identification errors occur when a witness mistakenly identifies the defendant due to confusion or inaccurate recollection of the event.

Scenario: A witness accuses the defendant of breaking into a home, but the description provided does not match the defendant’s actual appearance.

Defense Approach: The defense can highlight inconsistencies in the witness’s testimony, present evidence of the defendant’s physical differences, or provide an alibi proving they were elsewhere.

Real Case Outcome: In People v. Foster, the victim’s uncertainty about identifying the defendant led to an overturned conviction. Strong evidence supporting the defendant’s innocence can raise doubt and weaken the prosecution’s case.

Weak Evidence

For a burglary conviction, the prosecution must provide sufficient evidence of unauthorized entry and intent. If either element is lacking, the charge may not hold.

Scenario: The prosecution claims the defendant entered a commercial property to steal but lacks video evidence, witnesses, or proof of stolen items.

Defense Approach: The defense can argue that the prosecution has not met its burden of proof. By emphasizing gaps in evidence, such as the absence of surveillance footage or unreliable witness statements, the defense can create reasonable doubt.

These defenses demonstrate how tailored strategies can address various aspects of burglary charges. A thorough understanding of the law, combined with strong evidence and arguments, is critical to achieving the best possible outcome in court.

Recent Legal Changes in California Impacting Burglary Cases

Proposition 47, introduced in 2014, downgraded certain non-violent property crimes, including shoplifting and petty theft, from felonies to misdemeanors when the stolen property’s value was under $950.

This reclassification particularly affected second-degree burglary, reducing penalties for many theft-related cases.

However, new legislation aimed at tackling organized retail crime is now tightening these leniencies, reflecting a shift in California’s approach to property crime enforcement.

Updates to the Three Strikes Law

California’s Three Strikes Law remains a significant factor in sentencing for burglary. A first-degree burglary conviction is counted as a strike, and under recent updates effective in 2025, repeat offenders face harsher sentencing.

For instance, individuals with two prior strikes who are convicted of another felony, including second-degree burglary, could receive a life sentence. These changes emphasize stricter consequences for repeat offenders.

Evolving Plea Bargaining Options

Despite the tightening of property crime laws, plea bargaining continues to be a key tool in resolving burglary cases.

Prosecutors may agree to reduce charges from felonies to misdemeanors or offer lesser penalties in exchange for cooperation or guilty pleas.

The availability of plea deals often depends on factors such as the defendant’s prior record and the circumstances surrounding the case.

Immigration Ramifications

Burglary convictions can carry serious immigration consequences for non-citizens. Crimes involving moral turpitude, such as burglary, may result in deportation or challenges in obtaining citizenship.

Recent legislative changes may further complicate these outcomes by increasing penalties or reclassifying offenses in ways that attract stricter scrutiny from immigration authorities.

Non-citizen defendants are advised to seek legal counsel experienced in both criminal and immigration law to mitigate these risks.

These legal developments reflect California’s evolving stance on property crimes, balancing stricter enforcement with opportunities for plea resolutions.

Staying informed about these changes is crucial for anyone navigating the state’s legal system regarding burglary charges.

Can first-degree burglary be reduced to second-degree?
Yes, it is possible. A skilled attorney may argue for a reduction by demonstrating that the crime involved a commercial structure rather than a residence or by challenging evidence of intent to commit theft or a felony. Plea bargains can also lead to lesser charges.

What evidence is needed?
Evidence commonly includes physical items like tools used for entry, surveillance footage, forensic evidence (fingerprints or DNA), and witness testimonies. For the prosecution, proving intent and unlawful entry is key, while the defense may focus on disputing these elements.

How are degrees determined?
The distinction depends on the type of structure entered. First-degree burglary involves an inhabited dwelling, such as a home, while second-degree applies to non-residential structures like stores or offices. Intent and circumstances of the entry further influence the degree.

Can I get probation instead of jail?
Probation is possible, particularly for second-degree burglary or first-time offenses. Mitigating factors like a clean record, remorse, and cooperation can increase the chances of probation being granted instead of incarceration.

What makes it ‘inhabited’?
A structure is considered “inhabited” if it is currently used as a residence, even if the occupants are temporarily absent (e.g., on vacation). Vacant or abandoned properties do not qualify as inhabited under California law.