Study guide
11.5 Burglary
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
11.5 Burglary
Key Takeaways Explain This Topic AI
Common law burglary is the breaking and entering of the dwelling of another at night with the intent to commit a felony inside.
Breaking requires creating or enlarging an opening by actual force or by constructive force such as fraud or threat, so entering through a wide-open door is not a breaking at common law.
Entry is satisfied by any part of the body or an instrument crossing the plane, provided the instrument is used to commit the crime rather than merely to effect entry.
The intent to commit a felony must exist at the moment of entry, so forming it after entry defeats common law burglary.
Modern statutes typically eliminate the breaking, dwelling, and nighttime requirements and extend the offense to any structure and to an intent to commit any crime.
Last updated: September 2026
Burglary
Exam Snapshot: At common law, burglary and arson were strictly classified as offenses against habitation—designed to protect the security and sanctity of human shelter rather than mere property ownership. On the FYLSE, examinees must master the rigid common-law definitions of both crimes while simultaneously understanding how modern statutory enactments have stripped away archaic restrictions like the nighttime requirement and the technical breaking element.
- 1. Common Law Burglary: Deconstructing the Classical Elements
- The Common Law Rule Statement
At common law, burglary is defined as the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein . [ Breaking ] + [ Entering ] + [ Dwelling House ] + [ Of Another ] + [ In Nighttime ] + [ Intent to Commit Felony Therein ] = Common Law Burglary
Element 1: Breaking (Fractio)
A breaking requires the creation or enlargement of an opening through the application of physical force, or through recognized constructive equivalents:
Actual Breaking: Applying any physical force to move or displace an obstruction designed to close an opening:
Sufficient Force: Turning a doorknob, pushing open an unlatched closed door, lifting a window sash, or unhooking a screen door constitutes an actual breaking.
The Open Door/Window Trap: Walking through an open door or climbing through an open window is NOT a breaking . Because the occupant left the structure open to the elements, there was no barrier to displace.
The Partially Open Window Rule: If a window or door is already partially open (e.g., opened four inches for ventilation), climbing through the existing opening without touching the sash is not a breaking. However, under the majority common-law rule , if the intruder further pushes open, raises, or widens the partially open window or door to create an aperture large enough to pass through, that movement constitutes an actual breaking .
Breaking Interior Doors: If a defendant enters a building without a breaking (e.g., entering an open front door), but subsequently pushes open a closed interior bedroom door or breaks the lock on an interior office, the interior breaking satisfies the breaking element for burglary of that room.
Constructive Breaking: Where no physical force is applied to barriers, but access is gained by circumventing the occupant's consent through one of four methods:
Fraud or Artifice: Posing as a utility inspector, telephone repair technician, or delivery courier to induce the homeowner to unlock the door.
Threat of Violence: Threatening the occupant with imminent physical force (e.g., pointing a handgun through a window and ordering the occupant to unlock the door).
Collusion with an Insider: Conspiring with a household domestic servant or commercial security guard who unlocks the entrance to facilitate entry.
Exceeding Scope of Consent: Entering a public store or private home under limited consent, then entering an unauthorized, locked, or private residential quarters.
Element 2: Entering (Introitus)
Entry requires physical intrusion across the threshold or plane of the structure. Two critical rules govern entry on the FYLSE:
Bodily Intrusion: Any intrusion of any part of the defendant's physical body—even a fingertip, a foot, or the toe of a boot crossing the plane of a window or doorway—is sufficient to consummate entry.
The Instrument Entry Rule: When an instrument or mechanical tool crosses the threshold, whether entry has occurred depends strictly on the function of the tool :
Tool Used Solely to Effectuate a Breaking: If a crowbar, tire iron, or drill bit penetrates the plane of the window frame solely to pry open a lock or bore a hole, NO entry has occurred .
Tool Used to Consummate the Target Felony: If an instrument is inserted across the threshold to execute the underlying crime (e.g., inserting a wire coat hanger to snag a mink coat from a closet, or pointing a pistol barrel through a broken pane to shoot an occupant), ENTRY IS COMPLETE the instant the instrument crosses the plane.
Element 3: The Dwelling House (Mansion House)
At common law, a dwelling house was defined as a structure regularly used for human habitation and sleeping :
Habitation Status: A house remains a dwelling even if the occupants are temporarily absent on vacation, traveling, or in the hospital, provided the occupants possess the intent to return.
Unoccupied and New Structures: A newly constructed house never yet occupied as a sleeping place, or a home permanently abandoned by its occupants, is not a common-law dwelling.
The Curtilage Doctrine: At common law, the dwelling house extended to the curtilage —the enclosed parcel of land immediately surrounding the main house, including associated domestic outbuildings located within the common protective fence (e.g., barns, stables, smokehouses, and storage sheds).
Element 4: Of Another
Burglary is an offense against occupancy and habitation , not legal ownership or title:
Occupant vs. Landlord: A landlord who rents an apartment to a tenant does not have a possessory right to enter. If the landlord breaks and enters the tenant's rented apartment at night with intent to steal, the landlord commits common law burglary.
Co-Occupants: A person cannot commit common law burglary by entering a dwelling where they possess a current, lawful right of co-occupancy and entry (e.g., one spouse breaking into the marital home).
Element 5: In the Nighttime
Under the traditional common law, the entry must occur during the nighttime :
The Countenance Test: Nighttime was defined as the period between sunset and sunrise when there was insufficient natural daylight to discern a person's face (countenance). Artificial illumination (street lamps, moonlight, flashlights) was completely disregarded.
Element 6: Specific Intent to Commit a Felony Therein
The defendant must break and enter with the specific intent to commit a felony inside the dwelling (or any common-law theft, even if petit):
The Strict Concurrence Requirement: The specific felonious intent MUST exist at the exact microsecond of entry . If an intruder breaks and enters a dwelling to escape a freezing storm, to sleep, or merely to snoop, and only after entering decides to steal valuable property, no common law burglary has occurred (the defendant is guilty only of trespass and completed larceny).
Target Felony Need Not Be Completed: The burglary is fully consummated the instant the defendant enters with the required mental state. It is completely immaterial whether the intended felony is completed, attempted, or abandoned.
2. Modern Statutory Burglary & California Penal Code § 459
Modern penal codes have dramatically expanded the scope of burglary, transforming it from a narrow habitational offense into a sweeping property-protection statute: Common Law Burglary Modern Statutory Burglary
- ├── Breaking required ├── Breaking abolished (unlawful entry or remaining)
- ├── Nighttime required ├── Nighttime abolished (any time of day or night)
- ├── Dwelling house + curtilage ├── Any structure, building, vehicle, or vessel
- └── Intent to commit a felony └── Intent to commit ANY theft or ANY felony
- California Penal Code § 459 Architecture
Under California Penal Code § 459 , burglary is committed when a person enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, other building, tent, vessel, or locked motor vehicle, with intent to commit grand or petit larceny or any felony.
First-Degree Burglary (Residential): Burglary of an inhabited dwelling house , vessel, floating home, or trailer coach, or the inhabited portion of any other building. An inhabited structure is one currently used for dwelling purposes, whether occupied or not at the moment of entry. First-degree burglary is always a felony.
Second-Degree Burglary (Commercial): All other forms of burglary, including entries into commercial establishments, warehouses, offices, and locked automobiles. Second-degree burglary is a "wobbler" in California (punishable as either a felony or a misdemeanor).
Auto Burglary: To burglarize a motor vehicle under California law, the vehicle must be locked . Opening an unlocked vehicle door to steal items inside is grand or petty theft, but cannot constitute vehicle burglary under § 459.
Proposition 47 (Shoplifting - Cal. Penal Code § 459.5): Entering an open commercial establishment during regular business hours with intent to commit theft where the value of the property taken or intended does not exceed $950 constitutes the separate misdemeanor offense of shoplifting, which must be charged instead of second-degree commercial burglary.