Trespass and burglary are similar offenses but result in vastly different penalties. If you think you are charged with one or both of these charges, then look on your complaint to find your exact charge(s).

If your complaint contains a charge for a violation of Penal Code Section 602 (or 602 followed by any number between 1 and 13, such as 602.2 or 602.13), then you are only charged with trespass.

If your complaint contains a charge for a violation of Penal Code Section 459, then you are charged with burglary.

Simple Trespass

Despite its name, there are many forms of trespass. The facts of your case and the actual form of trespass determine the penalties. However, all forms of trespass are charged as either a misdemeanor or an infraction. There is no such thing as a “felony trespass.”

Examples of trespass include (1) walking onto the property of another and removing wood or timber from that property; (2) walking around, without permission, on land used for animal grazing and there are “no trespassing” signs at regular intervals on the land; or (3) building a fire on lands where “no trespassing” signs are posted at regular intervals and you do not have permission to be on the land. This is by no means a complete list of all forms of trespass. However, these particular forms of trespass might result in 36 months of informal court probation, maximum commitment time of up to 6 months in the county jail, and fines not exceeding $1000. The owner or controller of the land might also seek a restraining order against you. You would then not be able to enter and/or approach within a certain distance the land, dwelling place, or building of the offense.

A trespass can also occur when someone is, (1) at first, given permission to enter land, a dwelling place or a building, and (2) later that permission is knowingly and lawfully withdrawn, but (3) the person then refuses to leave. This situation is most common in commercial buildings such as stores or shops. Punishment for this particular form of trespass is usually 36 months of informal court probation, maximum commitment time of up to 6 months in the county jail, and fines not exceeding $1000. Also, you could be subject to a restraining order.

As mentioned above, some forms of trespass can be charged or reduced to infractions. Infractions are much better than misdemeanors because infractions cannot result in county jail time, and, most times, do not result in probation. (Sometimes, the judge or the deputy district attorney will request informal probation on an infraction conviction, but the penalties of violating probation on an infraction only result in a fine of up to $250.)

The following forms of trespass can result in an infraction but may also result in a misdemeanor depending on any prior convictions of trespass: (1) any unauthorized person knowingly entering any airport facility or public transit facility where the area has been regularly posted with “no unauthorized access” signs; (2) intentionally avoiding screening processes before entry into a “sterile area”, such as the boarding area of an airport, where there are regularly posted signs providing reasonable notice that prosecution may result from this behavior; (3) knowingly entering or remaining in a neonatal unit, birthing center or maternity ward, without having lawful business therein, where there are regularly posted signs providing reasonable notice that access is restricted only to those with lawful business therein; and (4) with some exceptions, knowingly entering land, without permission, where there are regularly posted “no trespassing” signs.

Burglary

The offense of burglary can be charged as a felony or a misdemeanor. Besides the penalties, the most apparent difference between burglary and trespass is that the former requires intent while the latter usually does not. Generally, burglary is defined as (1) entering some kind of structure with (2) the intent to commit theft (petty or grand) or any felony within the structure. The structure can be a:

• House
• Apartment
• Attached garage
• Vehicle (if it is locked)
• Locked or sealed cargo container
• Tent
• Barn
• Stable
• House boat
• Stable
• Shop

Burglary itself has two forms: first degree and second degree burglary. First degree burglary is defined as entering an inhabited dwelling house, house boat (or floating home), trailer coach, or the inhabited portion of any other building (like an attached garage) with the intent to commit grand or petty theft or a felony within the structure. Second degree burglary occurs when someone enters any other structure, such as a store, shop, unattached garage, or an automobile with the intent to commit grand or petty theft or a felony within the structure.

How do I know what type of burglary with which I am charged?

Oftentimes, if you are charged with first degree burglary, your complaint will contain “459(1)/460(a)”. The definition, or elements, of burglary are contained in Penal Code Section 459, but what distinguishes first degree from second degree burglary is contained in Penal Code Section 460(a). The “(1)” is added to the 459 to convey to the reader that it is first degree and not second degree burglary. Similarly, if you are charged with second degree burglary, then your complaint will most likely contain “459(2)/460(b)”.

Do not worry if you do not see these numbers in that exact order or position on your complaint. It might mean that the prosecutor who prepared your complaint made a mistake or you might be charged with something else. Call our office if you cannot determine the charges on your complaint.

What are the penalties of a burglary conviction?

Second degree burglary may be charged as a felony or a misdemeanor. The prosecutor of your case has the discretion to charge burglary either way. Whether or not it is charged as a felony or a misdemeanor will depend on any prior convictions and the facts of the case. If you are convicted of second degree burglary as a misdemeanor, you face maximum commitment time of up to 1 year in county jail, fines up to $1000, 36 months of informal probation, and an order from the judge that restrains you from approaching within a certain distance the scene of the offense (restraining order).

If you are charged with second degree burglary as a felony, then you face maximum commitment time of up to 3 years of state prison* and/or 1 year of county jail, possibly 36 months of formal probation and possible three years on parole.

First degree burglary can only be charged as a felony. Sometimes, the prosecutor will agree to reduce first degree burglary to second degree burglary as part of a plea bargain, but the judge has the discretion to reject a plea bargain. (However, as with all felonies and misdemeanors, you have the right to a jury trial on the first degree burglary and are free to reject any kind of plea bargain or offer from the prosecutor.)

If you are convicted of first degree burglary, you could face a maximum commitment time of 6 years in state prison*, 3 years on parole, and fines ranging from $100 to $20,000. Judges almost never grant probation in first degree burglary convictions.

Is burglary considered a strike under California’s Three Strikes Law?

The answer is, well, yes for first degree burglary and no for second degree burglary. The “good” news is simple first degree burglary is only considered a “serious felony”, not a “violent felony”. There are some felonies that are considered both serious and violent such as murder or rape.

*Your maximum commitment time in state prison might be more than stated above depending on any prior convictions, the type of alleged victim, and the facts in your case. For example, if you have two felony convictions on your record that qualify as “strikes” under California’s Three Strikes Law and you are then convicted of a felony in a separate case, your maximum commitment time is life without the possibility of parole. Or if the alleged victim of the first degree burglary just happens to be a disabled person and their condition is known or reasonably should have been known by the defendant, then the defendant’s maximum commitment time in state prison is increased by one year. Their maximum commitment would be 7 years on the first degree burglary charge.