Breaking and entering is a significant element of burglary. Burglary is defined as breaking and entering with the specific intent to commit a felony. In some jurisdictions, a nighttime element is required for the charge of burglary, which would require the breaking and entering to occur after daylight hours. 

In the state of California, burglary is defined as physically entering a structure with the intent to commit petty theft or a felony while inside the structure. The actual act of physically entering into a structure is commonly called breaking and entering and is a crime in California. Breaking and entering charges are often associated with the crime of burglary. 

How is Breaking and Entering Defined in the State?

Breaking and entering are generally defined as going into a structure or dwelling without permission of the owner. The entry may be forced or not forced. Listed below are common examples of California breaking and entering laws include:

  • Entering into someone else’s home through an open window 
  • Breaking a door and entering a home when no one is present 
  • Entering into a retail store after it’s closed and taking the product
  • Going back to a past place of employment and taking files that don’t belong to you after closing  
  • Walking into someone’s unlocked property to take items
  • Going into an already business to commit a crime
  • Walking into a private office to steal 

What Will the Prosecution Have to Prove to Convict Me of This Crime?

As with any crime, all the elements of a crime usually need to be proven in order to charge the person with the crime. Even if these two elements are met, the facts of the case may vary and affect the outcome. Listed below are the elements of proof for breaking and entering which are similar to the burglary: 

  • The defendant went into a structure or property, including a home, locked car, or room within a property
  • The defendant had the intent to commit a felony or petty theft.

What are the Defenses to Breaking and Entering?

Certain common legal defenses are available to the criminal defendant in a burglary case. Some breaking and entering defenses may include:

    • Consent: If the owner of the premises consented or gave permission to the defendant’s presence on the property it could be a defense. However, if the defendant exceeds the consent of the homeowners permission this defense may not be applicable. A common example of consent would be when one person gives another person the key to watch their house overnight.


    • Authorized to Enter: Similar to consent, if a person grants authority to the defendant, it might serve as a defense against criminal charges. However, the burden or liability may be shifted to the other party. The Authorization to Enter is a defense however it may not exceed the scope of the permission to enter. A common example of authorization to enter is when the defendant is given a key card to enter a building after hours. 


    • Mistake: The defendant must have the necessary intent to break into the dwelling place of another. In some cases, it may be a defense if they believed that they were entering their own property. This defense works only if the mistake used by the defendant prevented the intent of the breaking and entering to occur. 


While mistake is a defense to a breaking and entering charge, it takes place under two different subcategories:

Mistake of Law- Mistake of law occurs when the person that committed the crime did not understand or was unaware that the crime they committed was against the law. A common example of a mistake of law would include driving over a certain speed in their car when they were unknowingly breaking the speed limit. Because mistake of law is difficult to prove, it is seldom a defense to breaking and entering.

Mistake of Fact– Mistake of fact takes place when the person committing the crime did not understand an element of the crime and the mistake is reasonable. A common example of mistake of fact is when someone takes an item, like a piece of personal property that they think they own when really it belongs to someone else.

Based on these defenses, the facts of every breaking and entering case will vary. 

What is the Punishment for Breaking and Entering?

Breaking and entering is usually a misdemeanor; however, depending on the jurisdiction it can be considered a felony. Misdemeanors are less serious than felonies and carry much lighter criminal penalties. These penalties may include less than a year in jail, community service, fines, and rehabilitation. In contrast felonies, come with at least a year in prison. Either way, in both cases, the committing of this crime will result in consequences such as some jail time and criminal fees. Depending if the crime is a misdemeanor or felony, the charges for the breaking and entering sentence can change.

Either way, there are breaking and entering consequences. If property damage is involved, the defendant may be required to pay criminal restitution in order to pay for the damage. Also, with any crime, the age of the person committing the crime will be considered by the court. Breaking and entering charges for juveniles will differ then for those of an adult. Under extreme circumstances, where the burglary is a felony, a more severe penalty will be enforced and this could mean additional damages depending on the severity of the damages to the property of the victim.

Breaking and entering can be charged as either first degree or second degree crime. First degree breaking and entering is a felony and is punishable by a fine of up to $10,000 and 2 to 6 years in prison. It also counts as a strike on the defendant’s record. 

Breaking and entering are considered a wobbler crime, which means a crime can be charged as either a felony or a misdemeanor. If breaking and entering are charged as a misdemeanor, it is punishable by up to 1 year in jail and a fine of up to $1,000. If charged as a second degree felony, it is punishable by 2 to 3 years in prison and a fine of up to $10,000. 

Should I Contact a Lawyer Regarding My Breaking and Entering Charge?

In most cases, breaking and entering is a complicated crime to deal with. You may need to hire a breaking and entering lawyer if you need assistance with breaking and entering or any defenses. Your attorney may be able to help you identify whether any defenses will be applicable to your situation under breaking and entering laws in your area.

In addition, a California criminal lawyer will advise you and represent you in a court of law. Contacting a California criminal lawyer will help assure that you have your legal questions satisfied and can advise you on your options. They can also keep you updated if you have any questions about any changes to or developments to California breaking and entering laws. Finally, your lawyer can be on hand during the trial to represent you during any court hearings, proceedings, and trial if necessary.