California Burglary Laws
(Penal Code 459 PC)

California's burglary statute, Penal Code 459 PC, defines burglary as entering any residential or commercial building or room with the intent to commit a California felony, a grand theft or a petty theft once inside.1

Penal Code 459 PC reads : “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”

California burglary is divided into “first-degree burglary” and second-degree burglary.” First-degree burglary is burglary of a residence. Second-degree burglary is burglary of any other type of structure (including stores and businesses).2

PC 459 burglary is distinct from the crime of Penal Code 459.5 PC shoplifting, which was created by the voter initiative Proposition 47 in 2014. Shoplifting occurs when a defendant without certain serious priors on his/her record enters an open business, with the intent to steal merchandise worth nine hundred fifty dollars ($950) or less.3

Examples

Here are some examples of behavior that could lead to charges under California burglary laws:

  • Breaking into a house while the owners are not home with the intent to steal electronics and jewelry;
  • Entering a woman's unlocked apartment with the intent to rape her in the bedroom; and
  • Entering a bank with the intent to commit check fraud once inside.
    Masked-burglar-entering-home
    Residential (first-degree) burglary is punished more harshly under Penal Code 459 PC.

Penalties for first-degree burglary

California first-degree (residential) burglary is a felony. The potential consequences include a state prison sentence of two (2), four (4) or six (6) years.4

Penalties for second-degree burglary

Second-degree (commercial) burglary is what is known as a wobbler in California law. This means that it may be charged as either:

  1. A felony, with a potential county jail sentence of sixteen (16) months, two (2) years or three (3) years; or
  2. A misdemeanor, with a potential county jail sentence of up to one (1) year.5

Legal defenses

An experienced California criminal defense attorney can help identify the common legal defenses that are most useful for fighting PC 459 burglary charges. These may include:

  • You did not have the intent to commit a crime at the time you entered the building;
  • The items you stole or intended to steal actually belonged to you, or you believed you had a legitimate claim to them; and/or
  • This is a case of mistaken identity.

In order to help you better understand the California crime of burglary under Penal Code 459 PC, our California criminal defense attorneys will address the following:

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the Legal Definition of Burglary under Penal Code 459 PC?

The legal definition of California Penal Code 459 PC burglary is:

  1. The defendant entered a building, room within a building, locked vehicle or structure;
  2. When s/he entered that building, room, vehicle or structure, s/he intended to commit either a California felony or a California theft; and
  3. One (1) or more of the following three things is true:
    1. The value of the property that the defendant stole or intended to steal was more than nine hundred fifty dollars ($950);
    2. The structure that the defendant entered was not a commercial establishment; OR
    3. The structure that the defendant entered was a commercial establishment, but the defendant entered it outside of business hours.6

Those numbered sentences are the “elements of the crime” of California burglary. The prosecutor needs to be able to prove each of these elements in order for you to be guilty under Penal Code 459 PC.7

Burglar-using-crowbar-to-open-door
Intent to commit a theft or felony is a key element of PC 459 burglary.

Note that you are guilty of PC 459 burglary as soon as you enter a structure intending to commit a felony or theft. There is no requirement that you actually succeed in committing the felony or theft.8

Example: Larry is an office worker. While working late one night, he enters the office of his boss, Bella. Larry knows that Bella has a collection of expensive rare minerals on display in her office and is planning to steal one. But a cleaning person surprises him before he can do so.

Larry is guilty of the crime of burglary even though he never actually stole one of Bella's minerals.

On the flip side, you are only guilty of burglary if you intended to commit a theft or felony at the time you entered the building. If you had no such intent, or if you formed such intent only after entering the building, you did not commit a California burglary.9

Example: Donald is separated from his wife Christine. The two of them are going through bitter divorce proceedings. As part of her divorce case, Christine has accused Donald of spousal rape.

One night while Christine is sleeping, Donald comes back to the house they used to share and lets himself in through the back door (which he knows is always unlocked). Christine wakes up and finds him there. She calls the police.

Christine accuses Donald of coming back to the house intending to rape her. Based on her account, the prosecutor charges Donald with PC 459 burglary.

However, the prosecutor is not able to find convincing evidence that Donald actually intended to rape Christine. Donald claims that he returned to the house to look for some of his possessions that he left behind when he moved out.

Lacking proof of a key element of the crime of burglary—intent to commit a felony or theft—the prosecutor ends up dropping the burglary charges against Donald.

2. Frequently Asked Questions about PC 459 Burglary

2.1. What is the difference between first-degree burglary and second-degree burglary in California?

First-degree burglary under Penal Code 459 PC is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence.10

First-degree burglary is sometimes referred to as “residential burglary,” and second-degree burglary is sometimes referred to as “commercial burglary.”

Exterior-of-house-at-night-with-man-standing-outside
Burglary of a house or other inhabited structure is considered first-degree burglary under Penal Code 459.

2.2. What counts as a “residence” under California first-degree burglary law?

For purposes of the definition of first-degree burglary in California, a “residence” can be any of the following:

  1. An inhabited house;
  2. A room within an inhabited house;
  3. An inhabited boat;
  4. An inhabited floating home;
  5. An inhabited trailer coach;
  6. An inhabited portion of any other kind of building; or
  7. An inhabited hotel or motel room.11

“Inhabited” means that someone uses the structure as a dwelling. It doesn't mean that the person who lives there has to be home at the time of the burglary.12

But a structure is not considered to be “inhabited” if the residents have moved out and don't intend to return—unless they left only because of a natural or other disaster.13

Example: A gas leak in a residential neighborhood leads to the evacuation of a number of homes. Those homes sit empty for several months while the gas company tries to fix the leak.

Felicity goes to the neighborhood at night and enters several of these houses through unlocked windows. She steals small items like antique china and jewelry that the residents have left behind.

Felicity has committed first-degree/residential burglary under PC 459 even though the owners of these houses are not currently occupying them—because the residents left only because of a disaster.

A “house” under California burglary law includes any structure that is attached to the house and functionally connected with it.14

Example: Lonnie goes up and down a residential street at night, entering people's garages and stealing sports equipment.

The Perez family has an attached garage that is connected by a door to the main living areas of their house. Lonnie takes a bicycle from their garage. He has just committed first-degree burglary of the Perez house.

A few doors down is the Jackson house. The Jacksons have a detached garage in their backyard that is not connected to their house. Lonnie enters the Jacksons' garage and steals some golf clubs.

Lonnie has committed second-degree burglary of the Jackson's house—because the Jacksons' garage is not attached to their house and so does not count as an inhabited structure.15

2.3. What is the difference between PC 459 burglary and PC 459.5 shoplifting?

Penal Code 459.5 shoplifting is defined as:

  1. Entering a commercial establishment,
  2. While that establishment is open during normal business hours,
  3. With the intent to steal property that is worth nine hundred fifty dollars ($950) or less.16
Woman-in-store-sneaking-item-into-purse
PC 459.5 shoplifting is a subset of PC 459 commercial burglary in which the defendant intends to steal property worth $950 or less.

So, in other words, shoplifting is a subset of burglary, where the defendant enters an open store or other business with the intent to steal $950 or less worth of merchandise (this is the definition of petty theft).17

Example: Tammy and Lisa are high school students and friends. They decide to try shoplifting at an expensive department store. Each of them enters the store at a different entrance and attempts to leave with stolen goods. But both of them are caught by security before they can leave.

Tammy was attempting to take a pair of shoes worth $500. She can be charged with shoplifting under PC 459.5.

But Lisa was attempting to take a handbag that costs $1500. Because she entered the store with intent to take property costing more than $950, she may be charged with Penal Code 459 commercial burglary.

The crime of shoplifting was created by the voter initiative Proposition 47, which reduced the penalties for several minor crimes in California. Before the passage of Prop 47 in 2014, it was theoretically possible to charge shoplifters with second-degree burglary under Penal Code 459 PC—which can carry felony penalties.18

But defendants charged with PC 459.5 shoplifting face only misdemeanor penalties—unless either of the following is true:

  1. The defendant has a previous conviction for one of a list of serious crimes, including rape, murder, and sex crimes against children; or
  2. The defendant is required to register as a sex offender for a prior sex offense conviction.19

If either of these is true, the defendant who commits shoplifting can potentially face the same felony penalties as a defendant who commits second-degree burglary under PC 459.20

2.3.1. Can I get a PC 459 burglary conviction reduced to a shoplifting conviction under Proposition 47?

The answer is yes!

According to San Bernardino criminal defense attorney Neil Shouse21:

“Prior to the passage of Proposition 47 in 2014, people could be convicted of felony second-degree burglary for behavior that would now meet the definition of shoplifting. Prop 47 contains a provision that allows people convicted of felony burglary under these circumstances to apply for re-sentencing to a shoplifting misdemeanor. If this application is successful, it can remove the stigma of a felony from your record.”

Hand-dropping-ballot-in-ballot-box
The passage of Proposition 47 means some people with felony burglary convictions may be eligible to have their convictions reduced to misdemeanors.

If you think you might be eligible for Prop 47 re-sentencing from felony burglary to shoplifting, your best move is to contact a criminal defense attorney who is familiar with both Penal Code 459 PC and the re-sentencing provisions of Proposition 47.

2.4. Is burglary the same thing as “breaking and entering” in California?

Burglary under California Penal Code 459 PC is not the same thing as “breaking and entering.”

California burglary law does not require you to “break into” a property to be guilty of burglary. You can commit PC 459 burglary by entering a structure through an open or unlocked door or window. You can even commit burglary by entering an open business.22

The exception to this rule is burglary of a vehicle (also known as “auto burglary” in California ). You can only commit auto burglary if the vehicle is locked—and thus if you are required to “break into” it to steal the vehicle or property inside it. Otherwise, you are not guilty under California burglary and auto burglary law.23

2.5. What does it mean to “enter” a structure under Penal Code 459 PC?

The most important element of the legal definition of California burglary is that you “enter” a building or other structure.

Under PC 459, you are considered to have “entered” a structure if some part of your body, or some object under your control, penetrates the area inside the building's “outer boundary.”24

(The “outer boundary” of a building includes the area inside a window screen, and attached balconies on the second or higher floor of a building that are designed to be entered only from inside.25)

This means that all of the following defendants will be considered to have “entered” a structure under Penal Code 459 PC:

  • A woman who intends to steal property from inside a house removes a screen from one of the house's windows; she tries to open the window but is caught by a neighbor first.
  • A child reaches his hand through the open window of a house and steals a watch that the owner has left on the windowsill.
  • A man who intends to sexually assault the female resident of a second-story apartment uses a ladder to reach the woman's balcony and climbs over the railing onto the balcony. 
    Hands-opening-window
    Putting your hand through a window is sufficient to constitute an "entry" under PC 459.

3. What Are the Penalties for California Burglary?

The consequences of a PC 459 burglary conviction depend on whether you are charged with first-degree burglary or second-degree burglary.

3.1. First-degree burglary penalties

First-degree burglary (residential burglary) is always a felony in California law. The punishment for first-degree burglary may include:

In addition, first-degree burglary counts as a “strike” offense under California's “Three Strikes” law.27

3.2. Second-degree burglary penalties

Second-degree burglary carries lighter penalties than first-degree burglary.

Second-degree/commercial burglary under Penal Code 459 PC is what is known as a “wobbler.” A “wobbler” is a California crime that can be charged as either a felony or a misdemeanor, at the prosecutor's discretion.28

The potential consequences of a felony second-degree burglary conviction are:

  • Felony probation;
  • Sixteen (16) months, two (2) years or three (3) years served in county jail; and/or
  • A fine of up to ten thousand dollars ($10,000).29
Prison-tower-with-barbed-wire
Second-degree (commercial) burglary is a wobbler.

A misdemeanor second-degree/commercial burglary conviction carries the following potential punishment:

4. How Can I Fight PC 459 Burglary Charges?

While burglary's penalties can be quite severe, there are numerous legal defenses that a skilled California criminal defense lawyer can present on your behalf to help you fight Penal Code 459 PC burglary charges.

Some of the most common legal defenses to California burglary are:

Lack of intent

Intent is critical to a burglary prosecution. If you did not intend to commit a theft or a felony upon your entry into a location, you can't be convicted of burglary.

And the timing of the intent is also crucial. You need to have intended to commit a crime at the time you entered the building. If you only formed the intent after you were inside, you are not guilty of PC 459 burglary.31

Example: Maria and Tamara are neighbors in a small town where most people leave their doors unlocked. Tamara has borrowed a serving platter from Maria for a dinner party.

When Tamara walks to Maria's house to return the platter, she finds that Maria is not home. She tries the door and it is unlocked, so she goes in, intending to leave the serving platter on Maria's kitchen counter with a note.

But once inside Maria's house, Tamara notices Maria's wallet lying on the kitchen table. She looks in the wallet and sees almost a thousand dollars in cash. Tamara takes out $100 and leaves with it.

Tamara is guilty of petty theft for stealing Maria's money. But because she did not intend to steal when she entered Maria's house, she is not guilty of PC 459 burglary.

Flashlight-shining-past-deadbolt-lock
You are not guilty of PC 459 burglary unless you entered the building intending to commit a crime.

Mistake of fact/claim of right

Mistake of fact (sometimes referred to as "claim of right”) is a legal defense to Penal Code 459 PC burglary that is related to lack of intent. For instance, you would not be guilty of a California burglary if:

  • You entered another's home to take back something that you thought belonged to you; or
  • You believed you had permission to take the item.

Factual innocence

Simply showing that you didn't do it is often one of the best ways to fight a PC 459 burglary charge. It's not uncommon for innocent people to get arrested by mistake.

This may happen because of

  • Mistaken identity (maybe you happen to look like or have the same name as someone who was reported to the police for burglary);
  • Misleading evidence (for example, your fingerprints were found at the burglary scene, but only because had previously been there for innocent and legitimate reasons); or
  • Someone is falsely accusing you of burglary because s/he has mental problems or wants to get revenge on you.

Examples like these are why it is so important to hire a California criminal defense attorney as soon as you are falsely charged with PC 459 burglary. Even when the evidence appears damaging, an experienced lawyer will know how to exploit the weaknesses in the prosecution's case.

A good legal defense may convince the prosecutor to reduce—or possibly even dismiss— your burglary charges.

Police misconduct

police-officer-putting-handcuffs-on-suspect
Some Penal Code 459 burglary defendants are victims of police misconduct.

Sometimes the police are overeager to solve a burglary. Unfortunately, this can compel them to do things that violate your rights. Such unjust acts might include:

  • "Planting" or "fabricating" evidence;
  • Asking leading questions of witnesses during a line-up;
  • Violating your Fourth Amendment right against unreasonable searches; or
  • Coercing your confession.

If police misconduct is suspected in a PC 459 burglary case, we can file a Pitchess motion as to the officer. If granted, a Pitchess motion allows us to see whether others have made similar complaints about the officer in the past.

If we can show that the officer engages in a pattern of police misconduct, the prosecutor or judge may dismiss your Penal Code 459 PC burglary charges. Or, if the case goes forward, a jury may find you not guilty at trial.

5. California Penal Code 459 Burglary and Related Offenses

California crimes that are closely related to PC 459 California burglary include:

5.1. Penal Code 466 PC possession of burglary tools

Penal Code 466 PC possession of burglary tools makes it a crime to possess burglary tools with the intent to use them to commit felony Penal Code 459 PC burglary. (PC 466 also makes it a crime to make or alter a key without the consent of the person who controls the property that the key will open).32

Burglary-tool
Possession of burglary tools is sometimes charged along with PC 459 burglary.

Examples of burglary tools include:

  • Crowbars;
  • Slim jims;
  • Screwdrivers; and
  • Pliers.

If you are arrested while committing or shortly after committing a California burglary, and you are carrying any of these tools, you may be charged with both PC 459 burglary and PC 466 possession of burglary tools.

PC 466 possession of burglary tools is a misdemeanor carrying a potential county jail sentence of up to six (6) months.33

5.2. Penal Code 470 PC forgery

The crime of Penal Code 470 PC forgery is defined as knowingly creating, altering or using a written document, with intent to defraud.34

When most people think of burglary, they think of breaking into a building intending to steal something. But if you enter a bank or a store intending to commit forgery—for example, by cashing or creating a forged check—you can also face charges for Penal Code 459 PC burglary.

Forgery in most cases is a California wobbler.35

5.3. Penal Code 211 PC robbery

Penal Code 211 PC California robbery is defined as the taking of another's property from his or her person or immediate presence, accomplished by force or fear.36

You will likely be charged with both PC 459 burglary and robbery if:

  1. You enter a structure or other location belonging to someone else;
  2. Once inside you use force, intimidation or fear to obtain property from a person on the premises; and
  3. You intended to do so at the time of your entry (an important element of Penal Code 459 PC burglary).

Robbery is always a felony. Punishment is two (2) to five (5) years in the California state prison.37

5.4. Penal Code 602 PC trespass

Penal Code 602 PC trespass is defined as entering another's property without the right to do so.38 

Although it would seem that anytime you commit a PC 459 burglary you automatically commit a trespass, that isn't necessarily the case. Trespass focuses whether the other person has consented to your presence on his/her property.

California burglary law, on the other hand, focuses on your state of mind. If you intend to commit a felony or a theft when you enter the property, it doesn't matter whether or not you committed a trespass to gain entry.

If you are facing Penal Code 459 PC burglary charges, and the prosecution's evidence about your intent to commit a crime is weak, you may be able to negotiate a reduction of your charges to the much less serious crime of PC 602 trespass. Trespass is usually a misdemeanor and is sometimes even an infraction.39

The crime can also be filed as felony "aggravated trespass" under Penal Code 601 PC if you enter the property within 30 days of making a threat against the safety of its owner or occupants. 

5.5. Penal Code 464 PC burglary of a safe or vault/burglary with explosives

Penal Code 464 PC burglary of a safe or vault (also known as burglary with explosives) is charged when someone uses explosives, acetylene torches or similar devices to open a safe, vault or other secure place during a burglary.40

Penal Code 464 is considered a more serious crime than PC 459 burglary. It is a felony regardless of whether the targeted location is residential or commercial. Punishment for violation of this section is by three (3), five (5) or seven (7) years in state prison.41

Call us for help…

criminal-defense-firm-call-center

For questions about the crime of California burglary under Penal Code 459 PC, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada burglary laws, please see our page on Nevada burglary laws.

Additional Resources:

Criminal Case Summaries, Los Angeles Superior Court

Criminal Case General Information, San Bernardino County Superior Court

Criminal and Traffic Cases, Orange County Superior Court

Case Records Search, Riverside County Superior Court


Legal References:

  1. Penal Code 459 PC – Definition [of California burglary]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”)
  2. Penal Code 460 PC – Degrees [of burglary]; construction of section. (“(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree.”)
  3. Penal Code 459.5 PC – Shoplifting [contrast with PC 459 burglary]. (“(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”)
  4. Penal Code 461 PC – Punishment [for burglary]. (“Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”)
  5. Same.

    See also Penal Code 1170(h) PC – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense [such as second-degree burglary under PC 459] shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)

  6. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1700 – Burglary (Pen. Code, § 459). (“The defendant is charged [in Count ] with burglary [in violation of Penal Code section 459]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant entered (a/an) (building/room within a building/locked vehicle/structure/<insert other statutory target>);] [AND] 2. When (he/she) entered (a/an) (building/room within the building/locked vehicle/structure/<insert other statutory target>), (he/she) intended to commit (theft/ [or] <insert one or more felonies>). <If the evidence supports a defense theory that the crime was shoplifting as defined by Penal Code section 459.5, give paragraph 3A and the appropriate following optional paragraphs> [AND] [3A. The value of the property taken or intended to be taken was more than $950](;/.)] [OR] [3B. The structure that the defendant entered was a noncommercial establishment(;/,)] [OR] [3C. The structure was a commercial establishment that the defendant entered during non-business hours.]]”)
  7. Same.
  8. See CALCRIM 1700 – Burglary (Pen. Code, § 459), endnote 6 above.
  9. Same.
  10. Penal Code 460 PC – Degrees [of burglary]; construction of section, endnote 2 above.
  11. CALCRM 1701 – Burglary: Degrees (Pen. Code, § 460). (“Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree. First degree burglary is the burglary of an inhabited (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building). A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.] [A (house/vessel/floating home/trailer coach/part of a building) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.] [A house includes any (structure/garage/office/ ) that is attached to the house and functionally connected with it.] [A vessel includes ships of all kinds, steamboats, steamships, canal boats, barges, sailing vessels, and any structure intended to transport people or merchandise over water.] [A floating home is a floating structure that: (1) is intended to be used as a stationary waterborne residence; (2) does not have its own mode of power; (3) is dependent on a continuous utility link originating on shore; AND (4) has a permanent continuous hookup to a sewage system on shore.] [A trailer coach is a vehicle without its own mode of power, designed to be pulled by a motor vehicle. It is made for human habitation or human occupancy and for carrying property.] [A trailer coach is also a park trailer that is intended for human habitation for recreational or seasonal use only and: (1) has a floor area of no more than 400 square feet; (2) is not more than 14 feet wide; (3) is built on a single chassis; AND (4) may only be transported on public highways with a permit.] All other burglaries are second degree.”)

    See also People v. Villalobos (2006) 145 Cal.App.4th 310. ("[A] hotel or motel room that is currently rented as a temporary habitation is an inhabited dwelling for purposes of first degree robbery and [PC 459] burglary, regardless of the length of time for which the room is rented.")

  12. Same.
  13. Same.
  14. Same.
  15. See, e.g., People v. Cook 135 (1982) Cal.App.3d 785. ("In the situation where the garage is an attached and integral part of the house, it is simply one room of several which together compose the dwelling. This is especially true where, as in this case, the garage can be reached through an inside door connecting it to the rest of the residence. The statistically greater probability that an occupant of the house may be in the attached garage or enclosed patio justifies the Legislature's decision to treat burglaries of such locations more severely. Cook was properly convicted of first degree burglary [under Penal Code 459]").
  16. Penal Code 459.5 PC – Shoplifting [contrast with PC 459 burglary], endnote 3 above.
  17. See Penal Code 487 PC; Penal Code 488 PC [relevant to difference between PC 459 burglary and PC 459.5 shoplifting].
  18. Penal Code 461 PC – Punishment [for burglary], endnote 4 above.
  19. Penal Code 459.5 PC – Shoplifting [contrast with PC 459 burglary], endnote 3 above.

    See also Penal Code 667(e)(2)(C)(iv) PC; Welfare Code 6600(b) WC; and Penal Code 290 PC.

  20. Penal Code 459.5 PC – Shoplifting [contrast with PC 459 burglary], endnote 3 above.
  21. San Bernardino criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on high-profile gang, murder, firearms and felony burglary cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law, including complex sentencing laws like Proposition 47 and new statutes like PC 459.5 shoplifting.
  22. See CALCRIM 1700 – Burglary (Pen. Code, § 459), endnote 6 above.
  23. Penal Code 459 PC – Definition [of California burglary], endnote 1 above.
  24. CALCRIM 1700 – Burglary (Pen. Code, § 459). (“[Under the law of burglary, a person enters a building if some part of his or her body [or some object under his or her control] penetrates the area inside the building's outer boundary.] [A building's outer boundary includes the area inside a window screen.] [An attached balcony designed to be entered only from inside of a private, residential apartment on the second or higher floor of a building is inside a building's outer boundary.]”)
  25. Same.

    See also People v. Valencia (2002) 28 Cal.4th 1. (“A window screen is clearly part of the outer boundary of a building for purposes of [PC 459] burglary.”)

    See also People v. Yarbrough (2012) 54 Cal.4th 889, 894. ("Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building, and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary' (Valencia, supra, 28 Cal.4th at p. 11, 120 Cal.Rptr.2d 131, 46 P.3d 920), any slight crossing of which is an entry for purposes of the burglary statute [PC 459].").

  26. Penal Code 461 PC – Punishment [for burglary], endnote 4 above.

    See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [such as PC 459 burglary], in addition to the imprisonment prescribed.”)

  27. Penal Code 667 PC – Habitual criminals; enhancement of sentence; amendment of section; Penal Code 1192.7(c) PC – List of “serious felonies” [includes first-degree burglary under PC 459].
  28. Penal Code 461 PC – Punishment [for burglary], endnote 4 above.
  29. Penal Code 461 PC – Punishment [for burglary], endnote 4 above; Penal Code 1170(h) PC; Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
  30. Penal Code 461 PC – Punishment [for burglary], endnote 4 above; Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
  31. See CALCRIM 1700 – Burglary (Pen. Code, § 459), endnote 6 above.
  32. Penal Code 466 PC – Possession of burglary tools [often charged along with Penal Code 459 PC burglary].
  33. Same.
  34. Penal Code 470 PC – Forgery [may be charged along with or form the basis for Penal Code 459 PC burglary charges].
  35. Penal Code 473 PC – Penalties for forgery [compare to PC 459 burglary penalties].
  36. Penal Code 211 PC – California robbery [may be charged along with PC 459 burglary].
  37. Same.
  38. Penal Code 602 PC – California trespass law [potential charge reduction from Penal Code 459 burglary].
  39. Same.
  40. Penal Code 464 PC – Burglary of a safe or vault [compare to PC 459 burglary penalties].
  41. Same.

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