The penalty for attempted burglary in California depends on what was targeted. Attempting to burglarize a home is a felony punishable by one, two, or three years in state prison. Attempting to burglarize a commercial building is a wobbler, meaning it can be filed as a felony carrying up to 18 months in county jail or as a misdemeanor capped at three months in jail and a $500 fine. Penal Code 664 sets the sentence for an attempt at half what the completed crime would carry, which is how those numbers are reached.1California Legislative Information. California Code PEN 664 – Attempts
Attempted First-Degree Burglary: One, Two, or Three Years
First-degree burglary covers entering an inhabited dwelling with intent to commit theft or a felony inside. That includes houses, apartments, floating homes, trailer coaches, and the inhabited portion of any other building.2California Legislative Information. California Code PEN 460 – Degrees of Burglary A completed first-degree burglary carries a state prison sentence of two, four, or six years.3California Legislative Information. California Code PEN 461 – Punishment for Burglary
Cut those numbers in half and you have the attempt: one year, two years, or three years in state prison. There is no misdemeanor option. This is always a felony.
Probation is possible on paper but hard to get. Penal Code 462 tells judges not to grant probation for residential burglary “except in unusual cases where the interests of justice would best be served,” and the reason must be stated on the record.4California Legislative Information. California Code PEN 462 – Probation Restrictions for Burglary The same restriction applies to an attempt.
Attempted Second-Degree Burglary: Wobbler
Second-degree burglary is everything that isn’t residential: stores, offices, warehouses, and other commercial buildings. Attempted second-degree burglary is a wobbler, and the prosecutor’s choice usually turns on the circumstances of the offense and the defendant’s prior record.
As a felony, completed second-degree burglary carries 16 months, two years, or three years in county jail.3California Legislative Information. California Code PEN 461 – Punishment for Burglary With Penal Code 664 halving the term, a felony attempt is punishable by eight months, one year, or 18 months in county jail.
As a misdemeanor, the completed offense caps at six months in jail and a $1,000 fine. Halved, the attempt maxes out at three months in county jail and a $500 fine.
What Prosecutors Have to Prove
Penal Code 21a defines an attempt as two elements: a specific intent to commit the crime, and a direct but unsuccessful act toward carrying it out.5California Legislative Information. California Code PEN 21a – Attempts Defined The intent has to be to enter a structure to commit theft or a felony inside. The act has to be a concrete step toward getting in.
Direct steps look like prying open a window with a crowbar, jimmying a lock, or reaching through a broken pane to unlock a door. Actions that would have completed the burglary if nothing had stopped them.
Preparation is not enough. Buying a crowbar, driving past a house to scout it, or sketching a floor plan are all preparatory. The line is crossed when the conduct shifts from getting ready to actively trying to get inside. This element is where most attempted burglary cases are contested, because a case that fails here often collapses to a lesser charge instead.
Strike Consequences That Outlast the Sentence
Attempted first-degree burglary is a strike. Residential burglary is listed as a serious felony under Penal Code 1192.7(c)(18), and subsection (c)(39) sweeps in “any attempt to commit a crime listed in this subdivision.”6California Department of Corrections and Rehabilitation. Definition of Serious Felony Offenses Even an unsuccessful residential attempt lands on your record as a strike.
A second strike doubles the prison term for any later felony conviction.7California Legislative Information. California Code PEN 667 – Three Strikes Sentencing A third strike, when the current offense is a serious or violent felony, carries an indeterminate life sentence with a minimum of 25 years. Even a third offense that isn’t itself serious or violent is doubled unless specific aggravating factors apply.
Expungement After Probation
Penal Code 1203.4 allows a defendant who completes probation to withdraw the plea and have the case dismissed, and attempted burglary is not on the list of excluded offenses.8California Legislative Information. California Code PEN 1203.4 – Dismissal After Probation
An expungement helps but doesn’t erase. The strike still counts under the Three Strikes Law. The conviction may still have to be disclosed on some professional licensing applications and in immigration proceedings, where a burglary-related conviction can be treated as a crime involving moral turpitude with deportation consequences for non-citizens. Where an expungement does its work is employment and housing, where a dismissed case reads better than an active conviction.
Related Charges That Often Come With It
Two other charges commonly appear in attempted burglary cases, and prosecutors sometimes use them as a fallback when the attempt itself is hard to prove.
Possession of Burglary Tools
Penal Code 466 makes it a misdemeanor to possess crowbars, lock picks, slim jims, bump keys, key programming devices, and similar items with the intent to use them to break into a building or vehicle.9California Legislative Information. California Code PEN 466 – Possession of Burglary Tools Owning the tools isn’t illegal. Carrying them with intent to break in is. A locksmith with picks during the workday is in a very different position from someone with the same picks and a flashlight outside a building at night.
Trespassing
Trespassing under Penal Code 602 covers entering or staying on someone’s property without permission and requires no intent to steal or commit a felony.10California Legislative Information. California Code PEN 602 – Trespassing It is generally a misdemeanor punishable by up to six months in county jail and a fine of up to $1,000. Prosecutors sometimes fall back to trespassing when the “direct step” element for the attempt is thin, such as when someone is found in a backyard late at night with no tools and no clear sign of intent to enter.