How can they prove burglary (instead of just theft)?

What’s the difference between simple theft and burglary?

One word:  intent.

Burglary (Penal Code 459) is entering a structure with the intent to steal or commit a felony inside. They must prove that you entered a structure (residence, building, business, etc) and at the time you entered, you had the intent to steal or commit a felony.

For example, if you’re standing outside Target, look in and say to yourself, “I think I’ll go steal a few DVDs” then step in, you just committed burglary. Even though the elements of the crime are there, how would they ever prove it without something more? So how do they prove your intent? They can potentially do it with circumstantial evidence. If you brought an empty shopping bag that you put the DVDs into before leaving with them, that’s circumstantial evidence that you intended to steal when you went in and that’s why you brought the bag.

If they cannot prove that you had the intent to steal before you entered, they cannot prove burglary. In my Target example, if you are standing outside, step in, then say to yourself “I think I’ll go steal a few DVDs”, that’s not burglary since the intent to steal wasn’t formed until AFTER you entered. If they can’t prove that the intent to steal was there before you entered, the most you would face is theft.  Shoplifting (or other theft) is divided into two levels – petty theft (under $950) or grand theft (over $950 or theft of certain things like guns, autos, certain livestock, etc.)  Petty theft (Penal Code section 484 and 488) is a misdemeanor.  Grand theft (Penal Code 487) can be either a felony or a misdemeanor.

Burglary can be either first degree (residential) or second degree (all others – commercial, auto, etc). First degree is a straight felony and cannot be reduced to a misdemeanor. It is also a strike under California’s Three Strikes law. Second degree is a “wobbler” and can be either a felony or a misdemeanor.

That’s the main difference between burglary and theft.  Obviously, it makes a huge difference in what they can charge and prove, but even if your case is “just a petty theft,” don’t take it lightly.  A theft conviction can haunt you for years to come.

To discuss your situation further, give me a call or send an email.

Joe Dane


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  1. […] If the police think that you entered the store with the intent to steal, they can also charge you with burglary.  One of the typical things they look for is whether you had money, credit or debit cards or other ways to pay for the merchandise with you at the time.  If you had no way to pay for the items, they try to argue that you must have intended to steal when you went it since you had no money. They try to make it into a burglary charge if they think you brought something in with the intent to use it to hide merchandise.  Many women get wrongfully accused of burglary since they were carrying an oversized purse or bag.  Why is it a big difference whether or not you’re charged with burglary?  Petty theft is a misdemeanor.  Burglary can be charged either as a felony or a misdemeanor by the prosecutor.  Even as a misdemeanor, it carries a much higher maximum sentence (one year instead of just six months for petty theft). For more information about burglary and the intent required, see this post:  Burglary and intent in a shoplifting case […]

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