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Facing Criminal Charges For Burglary / Robbery? The Sooner You Act, the Stronger Your Defense Will Be.

Penal Code 459 PC is the California statute that defines "Burglary" as entering any structure, room or locked vehicle with the intent to commit a theft or felony offense once inside. Prosecutors can file burglary as a felony or a misdemeanor depending on whether it is a residence or a commercial structure. The crime of burglary is complete once the person enters the structure with the 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."


First vs Second Degree Burglary:

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

Shoplifting Distinguished 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.



Here are some examples of behavior that could lead to burglary 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.

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 misdemeanor, with a potential county jail sentence of up to one (1) year.

Legal Defenses

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:

What is the Legal Definition of Burglary?

In 459 PC, The Elements of Burglary Are That:

  1. The defendant enters a building, room within a building, locked vehicle or structure;

  2. At the time of entering 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 are 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.

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. 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.

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.

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 rapeOne 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.


Frequently Asked Questions

What Is The Difference Between First and Second-Degree Burglary?

First-degree burglary under is any burglary of a residence, while second-degree burglary is burglary of any building that is not a residence. First-degree burglary is sometimes referred to as “residential burglary,” and second-degree burglary is sometimes referred to as “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;

  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.

“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. 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.


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.

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.

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,

  3. 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. 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.

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.

Can I Get A Prior Burglary Conviction Reduced To Shoplifting?

The answer is yes! “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.” 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.


Is Burglary The Same Thing As “Breaking and Entering”?

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. The exception to this rule is a 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.


What Does It Mean To “Enter” A Structure?

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.”(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. 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. 


What Are the Penalties?

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


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.


Second-Degree Burglary Penalties:

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

Second-degree/commercial burglary 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:

  • 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).


A Misdemeanor Second-Degree/Commercial Burglary Bonviction Carries The Following Potential Punishment:


There are numerous legal defenses that a skilled California criminal defense lawyer can present on your behalf



How Can I Fight a Burglary Charge?


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 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.

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. 


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: 

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 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.


Related Offenses


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

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

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.


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. 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.


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.

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.


Penal Code 602 PC Trespass:

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



Our criminal lawyer will give you a FREE initial meeting to discuss your case and recommend a course of action. Even one hour talking to a true professional can change the way you view your case. Don’t face a  Burglary Charge without representation. We at Monterey Peninsula Law Inc. are here to help.


Call Us For Your Free Consultation Today!


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