California “Burglary” Laws – Penal Code 459 PC

July 4, 2020

In California, burglary is charged under penal code 459 pc[1] making it a crime to enter a structure with the intent to commit a theft crime or felony. The crime is accomplished the moment of entry regardless of whether a theft or felony occurs. Structures include:

  • Home / Apartment
  • Recreational Vehicle
  • Boat / Vessel
  • Warehouse
  • Department Store
  • Automobile

For burglary in the first degree, the building/structure must be a place of habitation – i.e., an identifiable person who uses the house for sleeping quarters. Second degree burglary occurs when the structure/building is commercial or is a locked vehicle.


Elements of Residential Burglary – PC 459

Under PC 459, the prosecution must prove the following elements beyond a reasonable doubt:

  1. You entered a building/structure;
  1. You intended to commit a felony or theft crime.[2]

Punishment & Sentencing


Residential burglary is punishable in the state prison for 2, 4, or 6 years even as a first time offender. It is a strike offense applicable to California’s three strike laws. Additionally, residential burglary is a straight felony that cannot be reduced to a misdemeanor.

Burglary in the second degree is a wobbler allowing the prosecutor to charge you with either a felony or misdemeanor. A felony conviction carries a county jail sentence of 16 months, 2, or 3 years.[3] A misdemeanor conviction carries up to one (1) year in the county jail.

Legal Defenses to Penal Code 459 PC


Burglary requires that you harbor the intent to steal or commit a felony at the moment of entry. If your intention was to commit a theft crime or felony after you entered, then you are not guilty of burglary. It aims to combat those who commit a home invasion with a predisposed illegal plan. However, some courts have made it clear that you only need to enter a specific room of a large household with the intent to steal or commit a felony.[4]

Claim of Right

A bona fide claim of ownership or right of possession, whether based on mistake of fact or law, is a defense to burglary.[5] Of course, it must be shown that your target offense was to commit a theft crime in which you believed you had a claim of right to possess. The rational under this defense stems on the fact that a person cannot intend to steal property which he or she genuinely believes to be their own.

Mistaken Identification

Many criminal cases are built solely upon eye-witness identification. Alarmingly, exoneration’s based on DNA or scientific evidence is growing increasingly.[6] This goes to show how faulty and unreliable eyewitness identification can be. There are many factors and outside influences affecting someone’s ability to recall the description of a suspect. For example, poor lighting, cross-racial identification, police suggestibility, and stress over witnessing the event can all play a crucial role in demonstrating unreliable identification.


Consent requires a defendant to prove that entry was legal and authorized by the owner or authorized agent. It is vitiated by force, fear, or fraud. Consent can be complex in situations involving the co-ownership of property or if you are charged with exceeding the permissible scope of consent.

Examples of Residential Burglary

  • John was homeless and could not find a place to bathe. He broke into a random home in a residential neighborhood and used the shower for five minutes. The home owner called the police and John was arrested for burglary. Here, John will be charged with burglary because he consumed water, and perhaps soap, when he took a shower. Accordingly, this constituted entry with the intent to commit a theft – e.g., water.[7]
  • Dan was walking in an alley on a beer run. He noticed an open garage with a bicycle inside. Dan walked in the garage to grab the bike. The owner of the home suddenly walked into the garage and became surprised by Dan’s presence. Dan abandoned his plan and ran away. In this case, Dan would be charged with residential burglary because he entered a residential structure with the intent of stealing the bicycle.
  • Billy’s grandmother left town for vacation. In her absence, Billy held a party at his grandmother’s home without her knowledge or consent. Many items were found missing, liquor was consumed, and utilities used. In this case, Billy is not guilty of PC 459 because there was no evidence that Billy possessed any intent of entering his grandmother’s home to take items or use utilities.[8]
  • One evening Bobby and his friend entered a home with the intent to steal valuable items. Little did they know, the home was vacated the day prior by a family moving out of state. However, the family left miscellaneous items intending to return for them. Here, Bobby is not guilty of burglary since there was no identifiable person who used the house as sleeping quarters at the time of the burglary or intended to do so in the future.[9]

Related Offenses

Contact Us to Schedule a Free Burglary Consultation

Burglary is a serious offense that often requires swift legal intervention. If you have been charged or are under investigation for PC 459, then contact an experienced Newport Beach criminal defense attorney. Call us today to schedule a free confidential consultation concerning your rights and defenses. Our office is dedicated to defending your freedom, rights, and reputation. We will explore defense strategies to obtain a dismissal of the charge or acquittal at trial. Give us a call today to discuss how we can help.

Legal Footnotes

[1] Penal Code 459 – defined (“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.”).
[2] See CALCRIM No. 1700.

[3] See Penal Code section 1170(h).

[4] See People v. McCormack (1991) 234 Cal.App.3d 253 where the court held a burglary conviction when the burglary was committed when intent to steal was formed after entry into building but before entering a room where the defendant intended to steal property.

[5] This defense is also applicable to aider and abettors. In the context of being an aider and abettor to the principal, People v. Williams (2009) 176 Cal.App.4th 1521 held that a defendant charged with burglary as an aider and abettor with the target crime of larceny is entitled to claim of right instruction where substantial evidence shows that the defendant believed in good faith that the property taken belonged to the co-principal.

[6] According to an article publish by the Innocence Project, there have been 367 exonerees since 1987. 69% of these cases involved eyewitness misidentification.

[7] In People v. Martinez (2002) 95 Cal.App.4th 581, the court upheld a burglary conviction after defendant entered into a residence to take a shower, and thus consumed water and soap. This constituted entry with the intent to commit a larceny since the property appropriated need only have some intrinsic value however slight.

[8] In In re Leanna W. (2004) 120 Cal.App.4th 735, the appellate court reversed a minor’s conviction for burglary after the minor’s unauthorized use of his grandmother’s house for a party during her absence, many items were found missing, liquor consumed, and utilities used; because there was no evidence that the minor possessed any intent of entering his grandmother’s house to take items or use utilities, especially in light of numerous others in attendance.

[9] See People v. Cardona (1983) 142 Cal.App.3d 481 holdings that a house from which a family had moved one day prior to the day it was burgled and to which they returned to remove the remainder of their belongings on the day of the incident was not “inhabited” since there was no identifiable person who used the house as sleeping quarters at the time of the burglary or intended to do so in the future.

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