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. 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.
The full language of the code section reads as follows:
459. 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.
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). 1 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
Examples of Burglary
Here are some scenarios 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. What are 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:
- You entered a building, room within a building, locked vehicle or structure;
- At the time of entering that building, room, vehicle or structure, you 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 you stole or intended to steal was more than nine hundred fifty dollars ($950);
- The structure that you entered was not a commercial establishment; OR
- The structure that you entered was a commercial establishment, but you entered it outside of business hours.6
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 enters his boss’s office with the intention of stealing her laptop, but a cleaning person surprises him before he takes it. Larry is still guilty of burglary.
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 sneaks into his ex-wife’s house to retrieve his belongings. His ex-wife wakes up and calls the police claiming Donald was going to kill her. Though since there is no convincing evidence he intended to commit murder, the D.A. brings no burglary charges.
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.”
For purposes of the definition of first-degree burglary in California, a “residence” can be any of the following:
- An inhabited house or room within one;
- An inhabited boat or 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 does not mean that the person who lives there has to be home at the time of the burglary.12
Though 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: Felicity goes to a neighborhood where residents evacuated due to a gas leak and steals from the empty homes. She is guilty of 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: Stealing from an attached garage is first-degree burglary, while stealing from a garage not attached to a house is second-degree burglary.
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.15 16
So, in other words, 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
If you are charged with PC 459.5 shoplifting, you face only misdemeanor penalties—unless either of the following is true:
- You have a previous conviction for one of a list of serious crimes, including rape, murder, and sex crimes against children; or
- 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
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
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
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/commercial burgling is a “wobbler,” which means it can be 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:
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 can’t be convicted of burgling.
And 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
Example: Tamara walks into Maria’s empty house to return her vacuum. Then Tamara notices Maria’s wallet on the kitchen table and steals $100 from it. Tamara committed petty theft but not burglary because she had no intent to steal when she entered Maria’s house.
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 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 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 they have mental problems or want to get revenge on you.
The police committed misconduct
Sometimes the police are overeager to solve a case. Unfortunately, this can compel them to 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.
California theft 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
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. Though 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 their person or immediate presence, accomplished by force or fear.36
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 their 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 does not 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
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 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
In Colorado? Please see our page on CRS 18-4-202 – 204.
In Nevada? Please see our page on NRS 205.060.
- California Penal Code section 459 PC. See also People v. Montoya (1994) 874 P.2d 903; People v. Smith (1978) 78 Cal.App.3d 698; People v. Hughes (2002) 27 Cal.4th 287; People v. Davis (Cal. 1998) 958 P.2d 1083; People v. Failla (Cal. 1966) 414 P.2d 39; People v. Griffın (2001) 90 Cal.App.4th 741; People v. Sherow (2011) 196 Cal.App.4th 1296; People v. Mooney (1983) 145 Cal.App.3d 502; People v. Young K. (1996) 49 Cal.App.4th 861; People v. Woods (1980) 112 Cal.App.3d 226; People v. Malcolm (1975) 47 Cal.App.3d 217; People v. Allen (2001) 86 Cal.App.4th 909; In re Lamont R. (1988) 200 Cal.App.3d 244; People v. Massie (1966) 241 Cal.App.2d 812; People v. Teamer (1993) 20 Cal.App.4th 1454; People v. Blalock (1971) 20 Cal.App.3d 1078; In re Amber S. (1995) 33 Cal.App.4th 185; People v. Brooks (1982) 133 Cal.App.3d 200; People v. Knight (1988) 204 Cal.App.3d 1420; People v. Jackson (2010) 190 Cal.App.4th 918; People v. Dingle (1985) 174 Cal.App.3d 21; People v. Nguyen (1995) 40 Cal.App.4th 28; People v. Gauze (1975) 15 Cal.3d 709; In re Richard M. (1988) 205 Cal.App.3d 7;People v. Davenport (1990) 219 Cal.App.3d 885; People v. Sears (1965) 62 Cal.2d 737; Fortes v. Municipal Court (1980) 113 Cal.App.3d 704;People v. Felix (1994) 23 Cal.App.4th 1385; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478; People v. Felix (1994) 23 Cal.App.4th 1385; People v. Frye (1998) 18 Cal.4th 894; People v. Clayton (1998) 65 Cal.App.4th 418; People v. Ravenscroft (1988) 198 Cal.App.3d 639; In re William S. (1989) 208 Cal.App.3d 313; People v. Hammon (1987) 191 Cal.App.3d 1084; People v. Harrison (Cal. 1989) 768 P.2d 1078; People v. Washington (1996) 50 Cal.App.4th 568; People v. Mackabee (1989) 214 Cal.App.3d 1250; People v. O’Keefe (1990) 222 Cal.App.3d 517; People v. Church (1989) 215 Cal.App.3d 1151; People v. Sparks (2002) 28 Cal.4th 71; People v. McCormack (1991) 234 Cal.App.3d 253; People v. Young (1884) 65 Cal. 225; People v. Richardson (2004) 117 Cal.App.4th 570; People v. Thomas (1991) 235 Cal.App.3d 899; People v. Wright (1962) 206 Cal.App.2d 184; People v. Nance (1972) 25 Cal.App.3d 925; People v. Nunley (1985) 168 Cal.App.3d 225; People v. Ortega (1992) 11 Cal.App.4th 691; People v. Kwok (1998) 63 Cal.App.4th 1236; People v. Griffın (2001) 90 Cal.App.4th 741.
- Penal Code 460 PC.
- PC 459.5 – Shoplifting.
- PC 461 – Punishment.
- Same. See also PC 1170(h).
- 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, for example, People v. Cook 135 (1982) Cal.App.3d 785. See also Corona v. Superior Court (Cal. App. 1st Dist. 2021) 65 Cal.App.5th 950.
- PC 459.5 – Shoplifting, endnote 3 above.
- PC 487; PC 488.
- PC 461 – Punishment, endnote 4 above. 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.
- 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. (2018) 29 Cal. App. 5th 1196.
- 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.
- 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. All of the following people 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.
- PC 461.
- PC 667. See also People v. Clark (Cal. App. 4th Dist., 2022), 81 Cal. App. 5th 133.
- PC 461.
- PC 461.
- PC 461.
- See CALCRIM 1700.
- PC 466. Examples of burgling 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 and PC 466.
- PC 470.
- PC 473
- PC 211. 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).
- PC 602.
- Same. The crime can also be 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.
- PC 464.