Penal Code 459 PC defines the crime of burglary as entering any structure or locked vehicle with the intent to commit grand theft, petty theft or any felony offense once inside. You can be charged with burglary even if there is no forced entry.
- Burglary of a commercial structure and auto burglary are punishable by up to 3 years in jail.
- Burglary of a residence is punishable by up to 6 years in jail or prison.
The crime of burglary is complete once the person enters the structure with criminal intent, even if the intended crime is never actually accomplished.
PC 459 states that “every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel…with intent to commit grand or petit larceny or any felony is guilty of burglary.”1
First vs Second Degree
California burglary law is divided into “first-degree” and second-degree.” First-degree is burglary of a residential structure. Second-degree is the burglary of any other type of structure (including stores and businesses).2
Burglary is distinct from California’s shoplifting law in Penal Code 459.5 PC, which was created by the voter initiative Proposition 47 in 2014. Shoplifting occurs when a person enters an open business, with the intent to steal merchandise worth nine hundred fifty dollars ($950) or less.3
Here are some examples of behavior that could lead to PC 459 charges in California:
- 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.
Penalties for first-degree burglary
First-degree (residential) burglary is always a felony in California. 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:
- A felony, with a potential county jail sentence of sixteen (16) months, two (2) years or three (3) years; or
- A misdemeanor, with a potential county jail sentence of up to one (1) year.5
An experienced defense attorney can help identify the common legal defenses that are most useful for fighting burglary charges. These may include taking the position that:
- 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 law, our California criminal defense attorneys will address the following:
- 1. How does California law define burglary?
- 2. Frequently Asked Questions
- 2.1. What is the difference between first and second-degree burglary?
- 2.2. What counts as a “residence”?
- 2.3. What is the difference between burglary and shoplifting?
- 2.4. Is burglary the same thing as “breaking and entering” in California?
- 2.5. What does it mean to “enter” a structure under Penal Code 459 PC?
- 3. What Are the Penalties?
- 4. How Can I Fight a Burglary Charge?
- 5. Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
A charge of burglary under Penal Code 459 PC requires the state to prove the following elements of the crime:
- The defendant entered a building, room within a building, locked vehicle or structure;
- At the time of entering that building, room, vehicle or structure, s/he intended to commit either a felony or a theft; and
- One or more of the following three things are true:
- The value of the property that the defendant stole or intended to steal was more than nine hundred fifty dollars ($950);
- The structure that the defendant entered was not a commercial establishment; OR
- 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
Note that you are guilty of burglary as soon as you enter a structure intending to commit a felony or grand theft or petty 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 offense charges against Donald.
First-degree burglary is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence. In other words, a commercial building.10
First-degree burglary is sometimes referred to as “residential burglary,” and second-degree burglary is sometimes referred to as “commercial burglary.”
For purposes of the definition of first-degree burglary in California, a “residence” can be any of the following:
- An inhabited house;
- A room within an inhabited house;
- An inhabited boat;
- An inhabited floating home;
- An inhabited trailer coach;
- An inhabited portion of any other kind of building; or
- 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
Penal Code 459.5 shoplifting is defined as:
- Entering a commercial establishment,
- While that establishment is open during normal business hours,
- With the intent to steal property that is worth nine hundred fifty dollars ($950) or less.16
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:
- The defendant has a previous conviction for one of a list of serious crimes, including rape, murder, and sex crimes against children; or
- 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
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 criminal record.”
If you think you might be eligible for Prop 47 re-sentencing a prior conviction 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.
Burglary 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. 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. Otherwise, you are not guilty under California burgling and auto burgling law.23
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.
The consequences of a PC 459 burglary conviction depend on whether you are charged with first-degree burgling or second-degree burgling.
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
In addition, it counts as a “strike” offense under California’s Three Strikes law.27
Second-degree burgling carries lighter penalties than first-degree.
Second-degree/commercial burgling 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 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
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:
Lack of intent
“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 can’t be convicted of burgling.
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 burgling.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.
Mistake of fact / claim of right
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.
Simply showing that you didn’t do it is often one of the best ways to fight a PC 459 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);
- Misleading evidence (for example, your fingerprints were found at the scene, but only because had previously been there for innocent and legitimate reasons); or
- Someone is falsely accusing you 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. 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 charges.
Sometimes the police are overeager to solve a case. 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, 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 PC 459 charges. Or, if the case goes forward, a jury may find you not guilty at trial.
California crimes that are closely related to PC 459 include:
Penal Code 466 PC possession of burglary tools makes it a crime to possess tools with the intent to use them to commit felony PC 459. (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
Examples of burgling tools include:
- Slim jims;
- Screwdrivers; and
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 and PC 466.
PC 466 possession of burgling tools is a misdemeanor carrying a potential county jail sentence of up to six (6) months.33
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 burgling, 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 PC 459.
Forgery in most cases is a California wobbler.35
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 and robbery if:
- You enter a structure or other location belonging to someone else;
- Once inside you use force, intimidation or fear to obtain property from a person on the premises; and
- You intended to do so at the time of your entry (an important element of PC 459).
The difference between robbery and burglary is that robbery involves violence or threats of violence and the actual taking of property. Burglary does not necessarily involve force or fear, and can be satisfied merely by intending to commit theft or a felony crime.
Robbery is always a felony. Punishment is two (2) to five (5) years in the California state prison.37
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 PC 459 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 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 PC 459 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 a 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.
Penal Code 464 PC burglary of a safe or vault (a.k.a. with explosives) is charged when someone uses explosives, acetylene torches or similar devices to open a safe, vault or other secure place during a PC 459 violation.40
Penal Code 464 is considered a more serious crime than PC 459. 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
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- California Penal Code section 459 PC – Definition. (“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.”)
- Penal Code 460 PC – Degrees; construction of section. (“(a) Every [PC 459 violation] 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 PC 459 of the first degree. (b) All other kinds of [PC 459 violations] are of the second degree.”)
- PC 459.5 – Shoplifting.
- PC 461 – Punishment.
- Same. See also PC 1170(h) – 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 shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1700 – (Pen. Code, § 459).
- See CALCRIM 1700 – (Pen. Code, § 459), endnote 6 above.
- PC 460 – Degrees; construction of section, endnote 2 above.
- CALCRM 1701 Same.
- 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 [PC 459 violations] of such locations more severely. Cook was properly convicted of first degree PC 459”).
- PC 459.5 – Shoplifting, endnote 3 above.
- PC 487; PC 488.
- PC 461 – Punishment, endnote 4 above.
- PC 459.5 – Shoplifting, endnote 3 above. See also PC 667(e)(2)(C)(iv); Welfare Code 6600(b) WC; and PC 290.
- PC 459.5 – Shoplifting, endnote 3 above. In re E.P., Cal. App. 4th Dist. Dec. 11, 2018, 240 Cal. Rptr. 3d 888, 29 Cal. App. 5th 1196 (“Because a person cannot commit PC 459 if he actually committed shoplifting, a prosecutor who wishes to convict a defendant of PC 459 must prove that the defendant did not commit shoplifting.“) People v. Osotonu, Cal. App. 1st Dist. Sept. 4, 2018) 26 Cal. App. 5th 973 (“[W]hen the defendant entered the laundromat during its regular business hours with the intent to commit larceny by theft he met the statutory definition of shoplifting.”) People v. Colbert (Cal. Jan. 24, 2019) 6 Cal. 5th 596 (“[E]ntering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not punishable as shoplifting under section 459.5, but instead remains punishable as PC 459”).
- 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 PC 459 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.
- See CALCRIM 1700 – (Pen. Code, § 459), endnote 6 above.
- PC 459 – Definition, endnote 1 above.
- CALCRIM 1700.
- 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].”)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), any slight crossing of which is an entry for purposes of the [PC 459 statute].”).
- PC 461.
- PC 667.
- PC 461.
- PC 461.
- PC 461.
- See CALCRIM 1700.
- PC 466.
- PC 470.
- PC 473
- PC 211.
- PC 602.
- PC 464.