Penal Code § 459 PC – California Burglary Laws

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

First-degree burglary – which comprises residential burglary – is a felony carrying two, four, or six years in California State Prison. Meanwhile, second-degree burglary – which comprises commercial burglary or auto-burglary – can be prosecuted as either a:

• felony, carrying 16 months, 2 years, or 3 years in jail; or
• misdemeanor, carrying up to 1 year in jail.

Note that burglary is a separate crime from shoplifting (459.5 PC), which is entering an open business with the intent to steal merchandise worth up to $950. Examples of burglary include:

• 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 this article, our Los Angeles criminal defense attorneys will address the following key issues regarding California burglary law:

• 1. Elements of 459 PC
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Frequently Asked Questions
• Additional Reading

1. Elements of 459 PC

For you to be convicted of burglary in California, prosecutors have the burden to prove beyond a reasonable doubt the following three elements of the jury instructions:

1. You entered a building, room within a building, locked vehicle or structure; and
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 $950; or
   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.

California law considers you guilty of burglary as soon as you enter a structure intending to commit a felony or grand theft or petty theft inside. There is no requirement that you actually succeed in committing the felony or theft.

On the flip side, you are only guilty of burglary if you intend to commit a theft or felony at the time you enter the building. If you had no such intent, or if you formed such intent only after entering the building, you did not violate 459 PC.¹

In California, burglary is divided into first- and second-degree.

2. Penalties

1st-Degree Burglary Punishment

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

• 2, 4, or 6 years in prison and/or
• A fine of up to $10,000.

Note the court will grant formal probation if it finds mitigating circumstances justifying a lesser penalty of up to one year in jail, which would then 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.² 

2nd-Degree Burglary Punishment

Second-degree burglary – which includes commercial burglary or auto burglary – is a wobbler. This 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.

As a felony, second-degree burglary carries:

• 16 months, 2 years, or 3 years in jail (or formal probation) and/or
• up to $10,000.

As a misdemeanor, second-degree burglary carries:

• up to 1 year in jail (or summary probation) and/or
• up to $1,000.³

Retail Theft Cases

It is a separate California crime under 496.6 PC to possess shoplifted retail property valued at more than $950 with the intent to sell, exchange, or return it. This offense – called unlawful deprivation of a retail business opportunity – is a wobbler.

As a misdemeanor, violating 496.6 PC carries up to one year in jail. As a felony, violating 496.6 PC carries a jail sentence of either 16 months, two years, or three years.

Also, you may face sentencing enhancements for selling, returning, or exchanging property you acquired through retail theft, as the chart below shows.

The court can issue a two-year restraining order barring you from entering the retail establishment you were convicted of burglarizing.⁴

Burglary can be a felony or a misdemeanor depending on the case.

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with burglary. In our experience, the following three defenses have proven very effective with California prosecutors, judges, and juries at getting 459 PC charges reduced or dismissed.

1. No criminal intent. As long as the D.A. cannot prove you intended to commit theft or any felony crime at the moment you entered the location, you cannot be convicted of burglary. For example, perhaps you were just returning property.³¹
2. Mistake of fact. Making a good-faith mistake can be enough to get burglary charges dropped. An example of mistake of fact is that you entered another’s home to take back something you thought belonged to you (“claim of right”). Another is that you believed you had permission to take the item.
3. Mistaken identity. Innocent people sometimes get arrested because misleading evidence or false accusations cause police to mistake your identity for the real burglar. Typical evidence we rely on in these cases includes recorded communications, GPS records, surveillance video, and eyewitness accounts.

Another potential defense to any criminal charge is police misconduct, 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.

If we can show that the officer engages in a pattern of police misconduct, the prosecutor or judge may dismiss your 459 PC 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 after your arrest. They only have to do this if they subject you to custodial interrogation.

Penal Code 459 is the California statute that defines “burglary.”

4. Related Offenses

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

• Burglary of a safe or vault (464 PC) – entering a building with intent to commit a crime inside and then using a torch or explosives to blow open a vault, safe, or other secure place; also called “safe cracking,” this felony carries three, five, or seven years in prison.
• Forgery (470 PC) – falsifying a signature or seal or counterfeiting documents when doing so with fraudulent intent.
• Petty theft with a prior (666 PC) – committing petty theft when you have a prior conviction for a theft crime you served time for, and you have a prior conviction for either a violent offense or a certain sex crime.
• Possession of burglary tools (466 PC) – possessing picklocks, crowbars, screwdrivers, or slide hammers, etc., with the intent of breaking into a dwelling, structure, automobile, or watercraft; this misdemeanor carries up to six months in county jail.
• Robbery (211 PC) – using force or fear to take another’s personal property from their person or immediate presence and against their will.
• Theft of $50 or less (490.1 PC) – this can be a misdemeanor (carrying up to six months in jail and/or $1,000) or a civil infraction (carrying up to $250 and no jail).
• Trespass (602 PC) – entering someone else’s property without permission or a right to do so, or remaining on another’s property after being asked to leave.

Frequently Asked Questions

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

In California, first-degree burglary is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence or of an automobile.

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.

“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.

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.

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

What is the difference between burglary and shoplifting?

In California, shoplifting is:

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 $950 or less.

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 (which is petty theft).

Example: Tammy enters a store with the intent to take shoes worth $500, so she commits shoplifting under 459.5 PC. Lisa enters the store with the intent to take shoes worth $1,500, so she commits commercial burglary under Penal Code 459.

Shoplifting is always 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.

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 459 PC.

Is burglary the same as “breaking and entering”?

No. California burglary law does not require you to “break and enter.” You can violate 459 PC 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.

The exception to this rule is 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.

What does it mean to “enter” a structure?

Under 459 PC, 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.”

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.

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.

Can a commercial burglary charge reduced to petty theft still be a felony?

Yes, potentially. While a “reduced” charge of petty theft (484 PC) is typically a misdemeanor, it can be elevated to a felony (as a wobbler) under two specific California statutes:

• 666.1 PC (new under Prop 36): If you have two or more prior theft-related convictions (such as burglary, robbery, carjacking, or shoplifting), regardless of whether they were violent.
• 666 PC (traditional rule): If you have just one prior theft conviction, but you also have a prior “super strike” (serious felony or violent felony) or are required to register as a sex offender.

In either case, even if the burglary charge is negotiated down to petty theft, the prosecutor can still file it as a felony.

Burgling a store is prosecuted as 2nd-degree burglary in California.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
• Burglary – Crime & Justice article giving an overview of burglary laws.
• Reformation of Burglary – William & Mary Law Review article on how burglary laws have changed and can change.
• Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
• That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.

Legal References: