Yes, in most situations. Burglary does not require breaking in; it requires entering a structure with the intent, at that moment, to commit theft or a felony, and permission to enter usually does not change that. The main exception is a place where you have an unconditional possessory right to enter, most commonly your own home.

What the prosecution has to prove

Under Penal Code section 459, a person who enters a house, room, store, locked vehicle, or another listed structure “with intent to commit grand or petit larceny or any felony is guilty of burglary.” CALCRIM No. 1700, the jury instruction on burglary, lists two core elements: the defendant entered the structure, and at the time of entry intended to commit theft or a felony. Lack of consent is not one of the elements, although the instruction’s commentary recognizes a narrow consent defense, described below.

Why permission usually does not defeat the charge

The California Supreme Court has rejected the idea that an owner’s invitation automatically prevents a burglary conviction. The entry need not be a trespass, and, quoting an earlier case, the court explained that “one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.” People v. Frye (1998) 18 Cal.4th 894, 954. In Frye, the defendant went into a cabin on an occupant’s invitation for an evening visit, intending to steal; the court held that the invitation did not bar a burglary conviction because nothing showed he had an unconditional possessory right to enter.

Stores follow the same logic. In People v. Gauze (1975) 15 Cal.3d 709, 713 to 715, the court explained that a store thief’s right to be there comes only from the store’s implied invitation to the public to enter for lawful purposes, which is why entering a store to steal could be burglary even during business hours. Since Proposition 47, though, entering an open store during regular business hours intending to steal property worth $950 or less is shoplifting and must be charged that way, not as burglary; other entries into a commercial establishment with intent to steal remain burglary (Penal Code section 459.5).

A genuine consent defense is narrower than simply being allowed inside. According to CALCRIM No. 1700’s commentary, the consent must be express and clear: the owner or occupant must expressly allow the entry and also know that the person intends to steal or commit a felony. You do not have to prove that consent outright; under the same commentary, the defense is established when the evidence raises a reasonable doubt about it. Still, that kind of consent is very different from an ordinary invitation, because the person who let you in must have known what you meant to do.

The exception: your own home

The rule changes for a place you have an unconditional right to enter. In Gauze, the California Supreme Court held that a man could not be guilty of burglarizing the apartment he shared with roommates, even though he entered intending to assault one of them. His entry invaded no possessory right of habitation, and his right to be there was absolute: a personal right that could not be conditioned on his roommates’ consent. This exception is narrow, and it turns on an unconditional right, not merely on having lived somewhere or being family:

  • It generally does not help someone who has moved out. Gauze explains that in an earlier case, a husband who had moved out three weeks before had no right to enter his wife’s home, a fact that alone supported the court’s statement there that he could be convicted of burglary. CALCRIM No. 1700’s commentary likewise says a family member who has moved out commits burglary by entering without authorization with felonious intent.
  • It does not let one joint owner or occupant authorize a third person to enter and commit a felony against the other owner or occupant, according to the same commentary.
  • It does not extend to a place you are merely allowed to visit, work in, or shop in. An ordinary invitation, an open door, or normal business hours are not the same as an unconditional possessory right.

Intent at the moment of entry is a separate question

Whether you actually intended to commit theft or a felony when you went in is often the more contested issue. The firm’s lack of intent and claim of right page covers that element in depth.

Talk to a lawyer about how you were allowed inside

If you are facing a burglary charge and the facts involve some form of permission, invitation, or a shared residence, exactly who let you in, and what right you had to be there, can matter a great deal to your defense. The Law Offices of David S. Chesley’s theft crimes practice can review those facts with you. Call (800) 755-5174.