Second-Degree Burglary (Penal Code § 460(b)) in California

Facing second-degree burglary charges in California can be confusing and stressful. While less severe than first-degree burglary, these charges still carry serious consequences that can affect your freedom, employment opportunities, and future. Understanding the specific nature of second-degree burglary, how it differs from first-degree burglary, and your defense options is crucial if you’ve been arrested or charged.

At David P. Shapiro Criminal Defense Attorneys, we’ve helped numerous clients in San Diego and Chula Vista successfully navigate second-degree burglary charges. This guide explains what you need to know about these charges and how an experienced defense attorney can help protect your rights.

What is Second-Degree Burglary Under California Law?

California Penal Code § 460(b) states simply: “All other kinds of burglary are of the second degree.” This definition might seem vague, but it essentially means any burglary that doesn’t qualify as first-degree burglary falls into this category.

To understand second-degree burglary, we first need to understand the general definition of burglary under California Penal Code § 459:

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, […] with intent to commit grand or petit larceny or any felony is guilty of burglary.”

Combined with PC § 460(b), second-degree burglary typically involves:

1. Entry into a commercial building, business, or structure that is not an inhabited dwelling
2. With the intent to commit theft or any felony inside

Common examples of second-degree burglary include:

• Breaking into a store after hours to steal merchandise
• Entering a warehouse to take inventory
• Using fraudulent means to enter a bank with intent to commit theft
• Entering a closed business office to steal equipment
• Shoplifting that involves entering with intent to steal (commercial burglary)

The Key Difference Between First and Second-Degree Burglary

The primary distinction between first and second-degree burglary is the type of structure involved:

• First-degree burglary involves entering an inhabited dwelling (house, apartment, occupied hotel room, etc.)
• Second-degree burglary involves entering any other structure (store, office, warehouse, etc.)

This distinction is significant because California law recognizes that entering someone’s home presents a greater safety risk and violation of privacy than entering a commercial establishment.

Elements Prosecutors Must Prove for Second-Degree Burglary

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

1. You entered a structure (that is not an inhabited dwelling)
2. When you entered, you had the intent to commit theft or any felony

Several key points are important to understand about these elements:

Entry Requirement

The “entry” element only requires minimal intrusion into the building or structure. Pushing open a door that was slightly ajar, reaching through an open window, or using a tool to extend your reach inside can all constitute “entry” for burglary purposes.

Intent Requirement

The intent to commit theft or a felony must exist at the time of entry. If you entered a store legally as a customer and only later decided to steal something, this would not constitute burglary (though it could still be theft or shoplifting).

Commercial Burglary and Shoplifting

Prior to Proposition 47 in 2014, entering a store during business hours with intent to steal (even small amounts) was charged as second-degree burglary. Now, if the value of the property is under $950, this is typically charged as shoplifting under PC § 459.5 instead of burglary.

Penalties for Second-Degree Burglary in California

Unlike first-degree burglary (which is always a felony), second-degree burglary is a “wobbler” offense that can be charged as either a misdemeanor or a felony depending on:

• The circumstances of the crime
• The value of stolen property
• Your criminal history
• Prosecutorial discretion

Misdemeanor Second-Degree Burglary Penalties

If charged as a misdemeanor, penalties may include:

• Up to one year in county jail
• A fine of up to $1,000
• Misdemeanor (summary) probation
• Restitution to victims
• Community service

Felony Second-Degree Burglary Penalties

If charged as a felony, consequences are more severe:

• 16 months, 2 years, or 3 years in county jail (under California’s realignment legislation)
• A fine of up to $10,000
• Formal probation
• Restitution to victims
• Community service

It’s important to note that unlike first-degree burglary, second-degree burglary is not a strike under California’s Three Strikes Law, regardless of whether it’s charged as a misdemeanor or felony.

Defenses to Second-Degree Burglary Charges

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

Lack of Intent

One of the strongest defenses is challenging the prosecution’s claim that you had the intent to commit theft or a felony when you entered the structure. If you formed the intent after lawfully entering, the burglary charge should not apply.

For example, if you entered a store as a legitimate customer and only decided to steal something after browsing for a while, you might be guilty of theft but not burglary.

Mistake of Fact

If you genuinely believed you had a right to enter the property or take the items in question, this might negate the required intent element. For instance, if you entered a building you believed you had permission to be in, or took property you honestly thought belonged to you, this could be a valid defense.

Mistaken Identity

Burglary cases often rely on security footage, fingerprints, or eyewitness testimony that can be unreliable or misinterpreted. If you were wrongly identified as the perpetrator, your attorney can challenge the evidence identifying you as the culprit.

Insufficient Evidence

The prosecution must prove all elements of burglary beyond a reasonable doubt. Your attorney may be able to identify weaknesses in the evidence regarding entry, intent, or your presence at the scene.

Illegal Search or Seizure

If evidence against you was obtained through illegal search and seizure in violation of your Fourth Amendment rights, your attorney can file a motion to suppress this evidence, potentially weakening the prosecution’s case.

Coercion or Duress

If you were forced to participate in the burglary under threat of harm, this may provide a defense, though this is less common than the other defenses listed.

Shoplifting vs. Second-Degree Burglary

In 2014, California voters passed Proposition 47, which created a new offense of shoplifting under Penal Code § 459.5. This changed how many cases that would previously have been charged as second-degree burglary are now handled.

Under PC § 459.5, shoplifting is defined as:

“Entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).”

Shoplifting under these circumstances is a misdemeanor, not a burglary charge. This distinction is important because:

1. Shoplifting carries lighter penalties than burglary
2. Many defendants with prior theft-related convictions now face less severe consequences
3. Some people previously convicted of second-degree burglary may be eligible for resentencing

However, if the value of the goods exceeds $950, or if the entry was into a commercial establishment after business hours, prosecutors may still charge the offense as second-degree burglary.

Long-Term Consequences of a Second-Degree Burglary Conviction

Beyond immediate legal penalties, a second-degree burglary conviction can have lasting impacts:

Criminal Record

A burglary conviction creates a permanent criminal record that appears in background checks, potentially affecting future opportunities.

Employment Difficulties

Many employers are hesitant to hire individuals with theft-related convictions, particularly for positions involving financial responsibility, customer homes, or valuable merchandise.

Professional Licensing

Certain professions require licensing that can be denied or revoked based on burglary convictions, including security guards, insurance agents, real estate professionals, and many healthcare positions.

Housing Challenges

Landlords frequently conduct background checks and may deny housing to those with burglary convictions, viewing them as potential security risks.

Immigration Consequences

For non-citizens, a burglary conviction may be considered a crime involving moral turpitude, potentially leading to deportation, removal proceedings, or inadmissibility issues.

Financial Impact

Beyond fines and restitution, a conviction can lead to higher insurance rates and lost income due to incarceration or difficulty finding employment.

Why You Need an Experienced Defense Attorney

Second-degree burglary charges require skilled legal representation because:

1. The wobbler nature of the offense means the difference between a misdemeanor and felony often comes down to effective legal advocacy
2. Technical defenses related to intent and entry require legal expertise to identify and leverage
3. Negotiating with prosecutors for charge reductions or dismissals requires experience and established relationships
4. Proposition 47 has created new legal strategies that an experienced attorney can utilize
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:

• Case evaluation expertise to determine whether your case qualifies for reduction under Proposition 47
• Investigative resources to gather evidence supporting your defense
• Negotiation skills for potential charge reductions or dismissals
• Knowledge of local courts in San Diego and Chula Vista and how they handle burglary cases
• Alternative sentencing advocacy to minimize jail time when appropriate

We begin with a thorough review of your case, identifying potential defenses and weaknesses in the prosecution’s evidence. Our goal is to achieve the best possible outcome, whether that means fighting for dismissal, negotiating a plea to a lesser charge, or pursuing sentencing alternatives.

Frequently Asked Questions About Second-Degree Burglary

Can second-degree burglary charges be reduced to a misdemeanor?

Yes. As a wobbler offense, second-degree burglary can be charged as either a felony or misdemeanor. Even if initially charged as a felony, it may be possible to have it reduced to a misdemeanor through negotiation or at sentencing.

Will I go to jail for second-degree burglary?

Not necessarily. While jail time is a possibility, many first-time offenders receive probation instead of incarceration, particularly when represented by an effective attorney.

Can I expunge a second-degree burglary conviction?

In many cases, yes. After successfully completing probation, you may be eligible to petition for dismissal (expungement) under PC § 1203.4. This doesn’t completely erase the conviction but can significantly reduce its impact on employment opportunities.

How does shoplifting differ from second-degree burglary?

Since Proposition 47, entering a store during business hours with intent to steal property valued at $950 or less is typically charged as shoplifting (a misdemeanor) rather than burglary. This distinction can significantly reduce potential penalties.

Contact a San Diego Second-Degree Burglary Defense Attorney Today

If you’re facing second-degree burglary charges in San Diego or Chula Vista, don’t wait to seek legal representation. Early intervention by an experienced defense attorney can significantly impact the outcome of your case.

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.