California Burglary Charges | Penal Code 459 PC

Burglary is charged under California Penal Code 459 pc[1] making it a crime to enter a structure with the intent of committing a theft crime or felony therein.  The term structure can mean boats, stores, homes, apartments, vehicles, and more.  The type and degree of burglary will depend on the characteristic of the structure.  For example, if you enter someone’s apartment then residential burglary will apply since an apartment is a place of habitation.  If you break into someone’s car, the government will charge you with auto burglary.  And if you enter a commercial structure, you could be charged with commercial burglary if you intended to steal or did steal property worth more than $950 or you’re a sex offender registrant or you suffer from a violent super strike offense.  Burglary does not require you to actually commit a theft or felony therein.  The crime is complete once you harbor the intent to commit a theft or felony at the moment of your entry.

Little do people realize how easy it may be for a person to be charged with burglary.  For instance, if you enter someone’s open garage in the middle of the day and take their bicycle and ride away, then you’ve committed residential burglary.  Consequently, you would be charged with a felony, have a bail amount set at $50,000, face a state prison sentence, and permanent strike on your record.  When facing burglary accusations, it’s important that you retain an experienced Newport Beach Burglary Attorney at the cases earliest juncture.

What is Residential Burglary?


Residential burglary, also known as burglary in the first degree, is a strike offense and straight felony carrying severe consequences.  The difference between residential burglary from auto and commercial burglary is that residential burglary is committed in an inhabited dwelling.  The term inhabited means that the structure is currently being used for dwelling purposes whether or not occupied.  The punishment for this offense will depend largely on whether or not the owner of the dwelling was present during the time of the burglary.  For example, if a residential burglary is committed when someone is present, the charge becomes a violent felony.  Consequently, a conviction carries a state prison sentence where you would serve 85% of your sentence.  However, if no one was present, then the charge is a serious felony where you’ll serve 50% of your time.  In either instance, you’ll suffer from a permanent strike on your record which could later be used a sentencing enhancement in the future.

What is Commercial Burglary?

Commercial burglary[2], also known as burglary in the second degree, occurs when you enter a commercial structure with the intent to commit a theft crime or felony.  Some examples of a commercial structure include a department store, warehouse, or storage unit.  Commercial burglary is a wobbler offense which means the government may elect to charge you with either a felony or misdemeanor.  Note, the value of the item(s) taken or attempted to take must exceed $950, otherwise you’ll be charged shoplifting[3] unless, you 1) the crime was not committed during normal business hours; and/or 2) you’re a 290 registrant; and/or 3) you suffer from a super-strike offense.  If you fall into any of the three categories, then the government can charge you with commercial burglary even if the property value is less than $950.  This charge generally occurs in outlet stores such as Gucci, Barney’s, or large stores such as Walmart, target, or Macys when someone enters and takes items valued at $950 or more without paying.

What is Auto Burglary?


Auto burglary occurs when you enter a locked vehicle with the intent to commit a theft or felony.  Similar to residential and commercial burglary, auto burglary does not require you to actually commit a theft, but only that you intended to enter to commit a theft.  The statute requires that you enter a “locked” vehicle and does not apply to car doors being open or ajar – including the vehicle’s trunk compartment.  Vehicle burglary is difficult for the government to prove if you did not give a statement to police.  Without a direct admission, the government must then circumstantially prove your state of mind.  And furthermore, most instances of auto burglary charges do not stem from you being arrested on the spot.  Instead, the government traces the crime to you based on finger print analysis.  For instance, griping the door handle, touching the window glass, or touching any part of the vehicle interior.  The government may elect to charge you with either a felony or misdemeanor.  The government will consider your prior criminal history as a material factor when determining if felony charges are appropriate or justified.

What are the Legal Defenses to Penal Code 459?

  1. Defense: Lack of Intent

This crime 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.  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]

  1. Defense: Lack of Entry

Any form of burglary requires there to be some form of entry however slight.  A person enters if “some part of his or her body, or some object under his or her control, penetrates the area inside the outer boundary.”  For example, sticking your hand through an open window will be sufficient enough for an entry.  In most cases, those arrested leave undetected.  If that’s the case, then the government will have a challenging time to prove you’re entry unless there some form of evidence connecting you to being inside / making an entry.

  1. Defense: Consent

If you were granted consent, then that can serve as a viable defense to burglary charges.  However, consent can be more challenging that most, including attorneys, would expect.  For instance, were you given limited consent and exceeded the permissible scope?  Did someone with dual ownership of the residence grant you consent?  At any time did the owner revoke consent expressly or implied under the circumstances?  It should be noted that the government need not prove that you entered a structure without consent since it’s not an element of the offense.  Instead, you have the burden of proof to raise a reasonable doubt on the issue of consent.  Furthermore, the defense of consent is not applicable if granted via force, threat, or fraud.

  1. Defense: 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.  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.  This defense is not applicable if you intended to commit an arson for example.  The rational under this defense stems on the fact that a person cannot intend to steal property which he or she reasonably believes to be their own.  In other words, if you believed in good faith, then that disproves criminal intent.

  1. Defense: Vehicle Unlocked

For the purposes of auto burglary, to “lock” the vehicle is “to make fast by interlinking or interlacing of parts…such that some for is required to break the seal to permit entry…”[5]  In other words, by opening a car door where the door is not locked, is not a violation of auto burglary.  The requirement is that the door was “locked”.  For example, in People v. Allen (2001) 86 Cal.App.4th 909, the appellate court reversed an auto burglary conviction stating that an auto burglary did not occur after the defendant opened an unlocked passenger door and then lifted a trunk latch to gain access to the trunk.

  1. Defense: Mistaken Identification

Many criminal cases are built solely upon eye-witness identification. Alarmingly, exonerations based on DNA or scientific evidence is growing increasingly.  This goes to show how faulty and unreliable eye-witness identification can be.  There are many factors which could affect someone’s ability to recall the description or identification of a suspect.  For example, poor lighting, cross-racial identification, police suggestibility, and stress over just witnessing the event can all play a critical role in demonstrating unreliable identification.  Our office has succeeded in a number of cases resting solely on witness identification from attempted murder to simple assault.  Just because a witness has identified you as the alleged suspect, does not necessarily mean the government can prove their case beyond a reasonable doubt.

  1. Defense: Search & Seizure

If at any time you’re stopped or searched by police, then the validity of their stop or search must be carefully reviewed.  Search and seizure laws are governed by the 4th Amendment requiring that police only search and/or seize individuals with some level of proof to justify a detention or search of your person, containers, or home.  Some examples include, traffic stops, vehicle searches, searches of your pockets, bags, and home / apartment.  If an unreasonable search or seizure was committed by the police, then any physical evidence will be ordered suppressed by the court.  As a result, the government cannot use that evidence against you in their case and chief.  Thus, the case could be dismissed completely.

  1. Defense: Miranda Violation

Perhaps you gave some incriminating statements to police that the government is going to rely upon to prove their case beyond a reasonable doubt.  For example, you said you were sorry and you would never do it again.  In that instance, it would be direct evidence to prove not only you were the individual who committed the burglary, but also that you harbored the intent to commit a theft crime when you entered.  If the government intends to use your statements against you, it’s important to analyze the lawfulness of your admission.  Contrary to popular belief, police are not always required to admonish you of your Miranda Rights.[6]  Law enforcement must do so if: 1) you were in custody; and 2) you were subject to interrogation.  Just because police never read you your Miranda rights doesn’t mean there’s misconduct.  However, it doesn’t mean that your lawyer should completely omit analyzing the admissibility of your statement.  If there is a way your attorney can suppress your statements, then they can file a motion to suppress your statement alleging a Miranda violation.  If the judge agrees that a violation occurred, the government will not be able to use your statements in their case in chief.  If the government was relying on your statements completely to help prove their case, then the government must dismiss the case.

Punishment & Sentence


Burglary in the first degree carries a state prison sentence of 2, 4, or 6 years.  Burglary in the second degree, as a felony, carries 16 month, 2, or 3 years in the county jail.[7]  A misdemeanor carries a maximum jail sentence of up to 1 year.  Auto burglary carries up to 1 year in the county as a misdemeanor or 16 months, 2, or 3 years in the county jail as a felony.[8]

If the court deems you eligible for probation, you will be placed on probation for a period of 3 or 5 years with additional orders to include community service, theft counseling, and court fines.  In addition, you will be ordered to pay restitution to your accuser or business in the event they suffer any financial loss.

Prior Burglary Case Examples – PC 459

  • EXAMPLE 1: People v. Cardona (1983) 142 Cal.App.3d 481 held 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.
  • EXAMPLE 2: 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 consume 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.
  • EXAMPLE 3: 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.
  • EXAMPLE 4: 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.

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or are under investigation for burglary under PC 459, contact an experienced Newport Beach criminal defense lawyer at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.  Our office represents those accused of burglary in Los Angeles, Orange County, Ventura, Riverside, San Diego, and San Bernardino counties.

What are the Related Charges?


[1] California Penal Code 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.”

[2] Reference to Commercial Burglary can be charged under California Penal Code 460.

[3] “Shoplifting” is charged under California Penal Code 459.5.

[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] See In re Lamont R. (1988) 200 Cal.App.3d 244.

[6] See Miranda v. Arizona (1966) 384 U.S 436.

[7] See Penal Code 1170, subdivision (h).

[8] See same.

[9] Penal Code 1203.4 (a)(1): In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

[10] Penal Code 17(b): When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

[11] Proposition 47 is under Cal. Pen. Code, 1170.18.

[12] Cal. Pen. Code, 290 governs California’s Sex Offender Registration Laws.

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