Burglary in the Second Degree

Many states divide burglary offenses into degrees depending on the seriousness of the offense. Typically, first-degree crimes are the most serious, although some states impose separate and harsher penalties for armed or aggravated burglaries. After first-degree, the next most serious will be second-degree burglary. States might divide burglary crimes even further into third and fourth degrees.

There's no set definition or penalty for the varying degrees of burglary crimes, as each state has its own criminal laws and penalties. For the purposes of this article, we'll review some of the most common definitions and penalties for second-degree burglary. Consult the state statutes or a criminal defense attorney for the specifics in your state.

What Is Burglary?

For starters, let's define burglary. A person commits burglary by unlawfully entering a building with the intent of committing a crime inside. Sounds simple enough, yet burglary crimes can involve a wide range of circumstances.

Varying Degrees of Burglary

States often divide burglary offenses into degrees based on one or more of the following factors:

• the type of building (residence or commercial building)
• whether the building was occupied at the time of the offense
• whether the defendant was armed or harmed anyone, and
• the intended crime (theft, crime of violence, felony, or misdemeanor).

What Makes Burglary First-Degree or Second-Degree?

The most serious burglary offenses typically involve a combination of the above factors, such as an unlawful entry into an occupied dwelling while armed and with the intent to commit a felony or crime of violence (such as rape or assault). A state might define this offense as aggravated or first-degree burglary. On the other end of the spectrum, the least serious burglary offenses generally involve unlawful entry into a non-residential building with the intent to commit a low-level offense (like misdemeanor theft). Second-degree offenses often fall in between these two extremes.

What Is Second-Degree Burglary?

States often distinguish first-degree from second-degree burglary by the type of building, the risk of harm or violence, or both.

For instance, Arizona divides burglary offenses into three degrees:

• first-degree for armed burglary (any building)
• second-degree for burglary of a dwelling (unarmed), and
• third-degree for burglary of a commercial or non-residential structure (unarmed).

California provides another good example. First-degree burglary involves an inhabited dwelling and second-degree covers everything else (unoccupied dwellings and any commercial buildings or non-residential buildings). (Ariz. Stat. §§ 13-1506, -1507, 1508; Cal. Penal Code § 461 (2022).)

Most states' laws are more nuanced than these examples, however. A first-degree offense might involve burglary of a dwelling while armed. And second-degree offenses cover burglary of a dwelling (unarmed), burglary of a non-residential building while armed, or both. Typically, these laws will have additional burglary degrees.

What Is the Punishment for Second-Degree Burglary?

Most burglary offenses are felonies, punishable by time in state prison. Exact penalties, though, will depend on how the state defines second-degree burglary.

Second-degree burglaries involving dwellings (homes) will usually have the harshest penalties, ranging from 10 to 20 years' prison time (and possibly more if the defendant is armed). For second-degree offenses involving non-residential buildings, the punishment might be more in the range of 5 to 10 years of incarceration (more if the defendant is armed or harms someone). California is somewhat of an outlier, as it only has two degrees of burglary and penalizes second-degree burglary as a wobbler, which means it's punishable by either a felony or misdemeanor sentence.

Sentencing for burglary offenses will also differ based on a defendant's criminal history. States often have enhanced penalties for habitual felony offenders or repeat burglary offenders.

Obtaining Legal Assistance

If you're charged with burglary (in any degree), you should talk to an experienced local criminal defense attorney. An experienced lawyer can explain the law in your state, answer any questions you might have about the criminal justice system, and evaluate your case to determine if you are in a good position to get the charges dismissed, plea bargain, or go to trial. An attorney can help you obtain the best possible outcome in your case and protect your rights.