Penal Code § 459 PC – California Burglary Laws

Under California Penal Code § 459 PC, burglary is the act of entering a residential or commercial structure (or a locked vehicle) with the intent to commit:

• grand larceny,
• petit larceny, or
• any felony offense.

The crime of burglary is complete once you enter the structure with criminal intent, even if your intended crime is never actually accomplished.¹ Forced entry is not required.²

Burglary is a separate crime from shoplifting (PC 459.5), defined as entering an open business with the intent to steal merchandise worth up to $950.³

Burglary offense	California penalties
1st-degree burglary: Burglary of a residence	felony: 2, 4, or 6 years prison
2nd-degree burglary: Burglary of a non-residence (“commercial burglary”) Auto-burglary	misdemeanor: 1 year in jail or felony: 16 months, 2 years, or 3 years in jail.

Defenses to burglary

• You did not have the intent to commit a crime at the time you entered the building;⁴
• The items you stole or intended to steal actually belonged to you, or you believed you had a legitimate claim to them;⁵ and/or
• This is a case of mistaken identity.

Examples of Burglary

• 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.

In order to help you better understand the law, our California criminal defense attorneys will address the following:

• 1. Definition of Burglary
• 2. Penalties
  • 2.1. 1st-Degree Burglary Penalties
  • 2.2. 2nd-Degree Burglary Penalties
• 3. Fighting The Case
• 4. Frequently Asked Questions
• 5. Related Offenses

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

1. Definition of Burglary

A charge of burglary under Penal Code 459 PC requires the state to prove the following elements of the crime:

1. You entered a building, room within a building, locked vehicle or structure;
2. At the time of entering that building, room, vehicle or structure, you intended to commit either a felony (which includes wobbler crimes) or a theft; and
3. One or more of the following three things are true:
   1. The value of the property that you stole or intended to steal was more than nine hundred fifty dollars ($950);
   2. The structure that you entered was not a commercial establishment; OR
   3. The structure that you entered was a commercial establishment, but you entered it outside of business hours.⁶

You are guilty of burglary as soon as you enter a structure intending to commit a felony or grand theft or petty theft.⁷ There is no requirement that you actually succeed in committing the felony or theft.⁸

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

2. Penalties

 2.1. 1st-Degree Burglary Penalties

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

• Felony (formal) probation;
• Two (2) years, four (4) years or six (6) years in California state prison; and/or
• A fine of up to ten thousand dollars ($10,000).²⁶

Note that the court will grant probation only if it finds mitigating circumstances justifying a lesser penalty of up to one year in jail, which would be followed by probation.

Also note that the court can add an additional year of prison if the victim is 65 or older, under 14, or disabled. The court can also add two years of prison if you have certain prior felony convictions.

Finally, note that first degree burglary counts as a “strike” offense under California’s Three Strikes law.²⁷

 2.2. 2nd-Degree Burglary Penalties

Second-degree/commercial burgling is a “wobbler,” which means it can be a felony or a misdemeanor at the prosecutor’s discretion. (The D.A. typically brings felony charges when you have a prior theft offense.) ²⁸

The potential consequences of a felony second-degree burgling 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

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

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).³⁰

3. Fighting The Case

While 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 burgling charges. In the end, the burden falls on prosecutors to prove guilt beyond a reasonable doubt.

Some of the most common legal defenses to PC 459 are:

You did not intend to commit a theft or felony when you entered the location

“Intent” is critical to a PC 459 prosecution. If you did not intend to commit a theft or a felony upon your entry into a location, you cannot be convicted of burgling. For example, perhaps you were in fact returning property.

The timing of the intent is also crucial. If you only formed the intent to commit a crime after you were inside the building, you are not guilty of burgling.³¹

You believed you had permission to take the item (“mistake of fact”)

Mistake of fact (sometimes referred to as “claim of right”) is a legal defense to PC 459 that is related to lack of intent. For instance, you would not be guilty of PC 459 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.

You are a victim of mistaken identity, misleading evidence, or false accusations

Simply showing that you did not do it is often one of the best ways to fight a PC 459 charge. Innocent people often get wrongly arrested because of:

• Mistaken identity;
• Misleading evidence; or
• Someone is falsely accusing you.

Typical evidence we rely on in these cases includes recorded communications, GPS records, surveillance video, and eyewitness accounts.

The police committed misconduct

Overeager police sometimes do things that violate your rights, such as:

• “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 a possibility, 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.

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

Note that it is usually not a defense that the police never read you your Miranda rights. They only have to do this if they subject you to custodial interrogation.

4. Frequently Asked Questions

What is the difference between first and second-degree burglary?

First-degree burglary is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence.¹⁰

First-degree burglary sometimes goes by the name “residential burglary,” and second-degree burglary sometimes goes by the name “commercial burglary.”

What counts as a “residence”?

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

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

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

A structure is not “inhabited” if the residents have moved out and do not intend to return—unless they left only because of a natural or other disaster.¹³

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

What is the difference between burglary and shoplifting?

Penal Code 459.5 shoplifting is defined as:

1. Entering a commercial establishment,
2. While that establishment is open during normal business hours,¹⁵
3. With the intent to steal property that is worth nine hundred fifty dollars ($950) or less. ¹⁶

Shoplifting is a subset of burglary, where you enter 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 enters a store with the intent to take shoes worth $500, so she commits shoplifting under PC 459.5. Lisa enters the store with the intent to take shoes worth $1,500, so she commits commercial burglary under Penal Code 459.¹⁸

Shoplifting is only a misdemeanor unless:

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

If either of these is true and you commit shoplifting, you can potentially face the same felony penalties as someone who commits second-degree burglary under PC 459.^{20 21}

Is burglary the same thing as “breaking and entering”?

No. California burglary law does not require you to “break and enter.” 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. There does not need to be forced entry or trespassing.²²

The exception to this rule is burgling a vehicle (also known as auto burglary). 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.²³

What does it mean to “enter” a 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

Note that “structures” include not just homes and buildings but also to sheds, animal pens, fenced loading docks, railroad cars, garages, warehouses, boats, and even vendor stands.

5. Related Offenses

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

• Penal Code 466 PC possession of burglary tools
• Penal Code 470 PC forgery
• Penal Code 211 PC  robbery
• Penal Code 602 PC trespass
• Penal Code 464 PC burglary of a safe or vault

In Colorado? Please see our page on CRS 18-4-202 – 204.

In Nevada? Please see our page on NRS 205.060.

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