Breaking and Entering

"Breaking and entering" refers to the common law (non-statutory) crime of burglary, which consisted of the breaking (forced) and entering of the dwelling of another at night with the intent to commit a felony inside.

California Law

Modern day statutes have changed a number of the aspects of the old common law of burglary. For example, in California, Burglary (Penal Code section 459) is defined as: any person who enters a building or structure with the intent to commit a theft or a felony.

The elements of modern day burglary include:

Breaking - The old common law burglary required an actual breaking into the building or structure. There is no requirement today that there be an actual breaking into the structure or building. Just the mere presence of an intruder on the premises is sufficient as long as the intruder's presence was unlawful. The opening of a door or window of a dwelling is considered a "breaking" even if the door or window was unlocked or slightly open. The California law also states that constructive breaking such as by fraud, threats, or misrepresentations are also considered a breaking.

Entry There is no requirement that there must be a forced entry into the building or structure as long as, at the time of entry, the intruder intends to commit a theft or a felony. Any portion of the body inside the structure, even momentarily, is enough to constitute entry. Even the use of a tool to gain entry is sufficient, if it is to commit the theft or felony, as well as gain entry.

Intent The suspect entering the structure or building must have the intent to commit a theft or felony at the exact moment of entering. There does not have to be a completed theft or felony, only the intent to commit one.

Nighttime- The old common law required the breaking and entering to occur during the nighttime. That is no longer required.

Dwelling The old common law required that the burglary be the dwelling or house of another. Burglary today is not limited to the dwelling of another. In fact, burglary today includes structures such as stores, warehouses, tents, house boats, hotel rooms, railroad cars, trailer coaches, locked vehicles', and aircrafts.

Degrees of Burglary In California, burglary is divided into first degree and second degree burglary. Every burglary of an inhabited dwelling house, vessel, floating home, or trailer coach which is designed for habitation, or any building that is designed for habitation is first degree burglary. Most other kinds of burglary are second degree.


The penalties for a burglary conviction are severe. First degree burglary is a felony and a "Strike" in California punishable by two to six years in state prison. Second degree burglary can be charged as a felony, punishable by up to three years in state prison, or as a misdemeanor, punishable by up to one year in county jail.

If you or someone you know is facing burglary (breaking and entering) charges, immediately consult with an experienced criminal defense attorney to learn about the criminal justice system, your rights, defenses, and any and all legal options.

See also, Burglary.

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