First-Degree Burglary (Penal Code § 460(a)) in California

Facing first-degree burglary charges in California is an extremely serious matter. Unlike second-degree burglary, first-degree burglary is always a felony and counts as a strike under California’s Three Strikes Law. The consequences of a conviction can follow you for decades, affecting everything from your freedom to your ability to find housing and employment.

At David P. Shapiro Criminal Defense Attorneys, we understand the gravity of these charges and are committed to providing strategic defense for those accused of first-degree burglary in San Diego and Chula Vista. This guide explains what constitutes first-degree burglary, the potential penalties, and how an experienced criminal defense attorney can help protect your rights and future.

What is First-Degree Burglary Under California Law?

California Penal Code § 460(a) defines first-degree burglary as:

“Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.”

In other words, first-degree burglary occurs when someone enters an inhabited dwelling with the intent to commit theft or any felony. The key element that distinguishes first-degree burglary from second-degree burglary is that the structure must be an inhabited dwelling or residence.

What Qualifies as an “Inhabited Dwelling”?

In California, an “inhabited dwelling” is broadly defined and includes:

• Houses and apartments
• Houseboats and inhabited vessels
• Mobile homes and trailer coaches
• The inhabited portions of any building
• Hotel and motel rooms
• Floating homes

The term “inhabited” means that the structure is currently being used for dwelling purposes, whether or not someone is present at the time of the burglary. A dwelling remains “inhabited” even if the residents are temporarily away (such as on vacation). The law is designed to provide extra protection to people’s homes, recognizing the heightened sense of violation and danger when burglaries occur in places where people live.

Elements of First-Degree Burglary That Prosecutors Must Prove

For a first-degree burglary conviction, the prosecution must prove beyond a reasonable doubt that:

1. You entered an inhabited dwelling (or a structure within the categories listed in PC § 460(a))
2. When you entered, you intended to commit theft or any felony
3. The dwelling was inhabited at the time (even if no one was physically present)

It’s important to note that “entry” doesn’t require breaking and entering or forcing your way in. Even slightly opening a door or window or reaching through an opening with your hand can constitute entry. Additionally, the entry must be accompanied by the intent to commit theft or a felony—this intent must exist at the moment of entry, not formed afterward.

Penalties for First-Degree Burglary in California

First-degree burglary is always charged as a felony in California and carries severe penalties:

Direct Criminal Penalties

• State prison sentence of 2, 4, or 6 years
• A fine of up to $10,000
• Formal probation (in lieu of prison in some cases)
• A strike under California’s Three Strikes Law

Enhanced Penalties in Special Circumstances

The penalties for first-degree burglary may be increased under certain circumstances:

• If someone other than an accomplice was present in the residence during the burglary (occupied burglary)
• If the burglary involved the use of a weapon
• If the burglary caused great bodily injury to a victim
• If you have prior strike offenses on your record
• If the burglary was committed for the benefit of a criminal street gang

Collateral Consequences

Beyond the direct criminal penalties, a first-degree burglary conviction can result in:

• Loss of the right to own or possess firearms
• Loss of certain professional licenses
• Difficulty finding employment
• Housing challenges due to background checks
• Immigration consequences for non-citizens
• Restitution payments to victims

How First-Degree Burglary Differs From Other Burglary Charges

Understanding the differences between first-degree burglary and related offenses is crucial:

First-Degree vs. Second-Degree Burglary

As defined in California Penal Code § 460(b), “All other kinds of burglary are of the second degree.” Second-degree burglary involves the burglary of any structure that is not an inhabited dwelling, such as commercial buildings, stores, or uninhabited structures.

Key differences include:

• Second-degree burglary is a wobbler (can be charged as either a misdemeanor or felony)
• Second-degree burglary carries lighter sentences (16 months, 2 years, or 3 years if charged as a felony)
• Second-degree burglary is not automatically a strike offense
• Second-degree burglary often involves commercial establishments rather than homes

Burglary vs. Robbery

While burglary involves entering a structure with the intent to commit theft or a felony, robbery (California Penal Code § 211) involves taking property directly from a person by means of force or fear. The key differences are:

• Robbery requires the presence of a victim and the use of force or fear
• Burglary requires entry into a structure with criminal intent
• Robbery is always a violent crime; burglary may not involve any direct confrontation

Burglary vs. Trespass

Trespass (California Penal Code § 602) involves entering someone else’s property without permission but lacks the intent to commit theft or a felony once inside. This is a critical distinction, as the intent to commit a crime upon entry is what elevates the act from trespass to burglary.

Common Defense Strategies for First-Degree Burglary Charges

Several defense strategies may be effective when facing first-degree burglary charges:

Lack of Intent

One of the most common defenses is challenging the prosecutor’s claim that you intended to commit theft or a felony when you entered the dwelling. If you can demonstrate that you formed the intent after entry, the charges might be reduced or dismissed.

Mistaken Identity

Burglaries often occur when residents are away, meaning eyewitnesses are rare. If you were misidentified through surveillance footage, witness statements, or other evidence, this could provide a strong defense.

Legitimate Reason for Entry

If you had permission to enter the dwelling or believed you had a right to be there, this could negate the unlawful entry element of burglary.

Challenging the “Inhabited” Status

If the dwelling wasn’t actually inhabited at the time (for example, if it was abandoned or under construction with no one living there), the charge might be reduced to second-degree burglary.

Insufficient Evidence

The prosecution must prove all elements beyond a reasonable doubt. Often, evidence collected at burglary scenes is limited, and your attorney may be able to challenge the sufficiency of the evidence against you.

Fourth Amendment Violations

If evidence was obtained through an illegal search or seizure in violation of your Fourth Amendment rights, your attorney could file a motion to suppress that evidence.

Real-World Scenarios That May Lead to First-Degree Burglary Charges

Understanding how first-degree burglary charges arise can help contextualize these serious allegations:

Scenario 1: Traditional Home Break-In

The most straightforward example is someone who breaks into an occupied home intending to steal valuables. Even if the residents are asleep or in another part of the house, this qualifies as first-degree burglary.

Scenario 2: Entry By Deception

Someone who gains entry to a home by posing as a utility worker, delivery person, or through another ruse, with the intent to steal once inside, can be charged with first-degree burglary even though no “breaking” occurred.

Scenario 3: Unauthorized Entry by Former Resident

A person who no longer lives at a residence but uses an old key to enter with the intent to take items they believe are theirs (or to commit another crime) may face first-degree burglary charges if they no longer have legal permission to be there.

Scenario 4: Entry Into Attached Structures

Entering an attached garage, basement, or other structure connected to an inhabited dwelling with the intent to commit theft or a felony can constitute first-degree burglary, even if no one enters the main living area.

Why You Need an Experienced Defense Attorney

First-degree burglary charges demand skilled legal representation because:

1. The consequences of a conviction are severe and long-lasting
2. The strike nature of the offense means future criminal charges would carry enhanced penalties
3. Technical legal defenses may be available that require expertise to identify and leverage
4. Negotiating charge reductions requires experience with similar cases and knowledge of local court practices
5. Alternative sentencing options may be available but require knowledgeable representation to secure

How David P. Shapiro Criminal Defense Attorneys Can Help

Our experienced San Diego defense team brings specific advantages to your case:

• Strategic case evaluation to identify the most promising defense approaches
• Thorough investigation to uncover weaknesses in the prosecution’s case
• Expert witness consultation when needed to challenge evidence like fingerprints, DNA, or surveillance footage
• Skilled negotiation with prosecutors for potential charge reductions
• Aggressive trial advocacy if your case goes to court
• Knowledge of local judges and prosecutors in San Diego and Chula Vista

We begin with a comprehensive case review to understand all aspects of the allegations against you and develop a tailored defense strategy. Our approach focuses on achieving the best possible outcome while providing clear communication throughout the process.

Frequently Asked Questions About First-Degree Burglary Charges

Is first-degree burglary always a felony in California?

Yes. Unlike second-degree burglary, which can be charged as either a misdemeanor or felony, first-degree burglary is always a felony in California.

Can I get probation instead of prison for first-degree burglary?

Possibly. While first-degree burglary carries potential prison time, the court has discretion to grant probation in certain cases, particularly for first-time offenders or when mitigating circumstances exist.

Will I have to register as a convicted felon if found guilty?

Yes. A first-degree burglary conviction is a felony, requiring you to register as a convicted felon, which can impact your voting rights, ability to own firearms, employment opportunities, and more.

How long will a first-degree burglary conviction stay on my record?

A first-degree burglary conviction will remain on your record permanently unless you qualify for and are granted specific relief such as a certificate of rehabilitation or a governor’s pardon. These remedies are limited and typically only available after significant time has passed.

Can a first-degree burglary charge be reduced to a misdemeanor?

Generally, no. First-degree burglary cannot be reduced to a misdemeanor under California Penal Code § 17(b) like some other felonies. However, in some cases, it may be possible to negotiate a plea to a different charge that is either a misdemeanor or a felony eligible for later reduction to a misdemeanor.

Contact a San Diego First-Degree Burglary Defense Attorney Today

If you’re facing first-degree burglary charges, don’t wait to seek legal representation. These serious charges require immediate attention from an experienced criminal defense attorney who understands how to navigate California’s complex burglary laws.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.