California Burglary Laws under Penal Code § 459, Explained

Burglary charges brought under California Penal Code section 459 are more common than you might think.

California burglary laws are very broad and cover many types of theft or crimes. Entering a structure with the intent to commit any felony inside the structure can be charged as burglary under Penal Code section 459 (sometimes referred to as “PC459”). Burglary can be charged as either a felony or a misdemeanor depending on the facts of your case.

The public usually imagines a burglar as someone with a mask who breaks into a home at night, but California law is very broad and many crimes could be considered burglary that have nothing to do with stealing or theft. In many ways, a burglary charge focuses on your state of mind. The following variety of crimes could be charged as burglary if the person had the intent to commit a felony crime before going inside:

  • Entering a store with the goal of stealing something. Although this is shoplifting under PC 484 and PC 459.5, this crime can also be charged as a burglary under PC 459.
  • Entering someone’s home through an open door and either robbing or sexually assaulting them.
  • Entering a bank with the intent to cash a fraudulent check.
  • Entering a business with the intent to use counterfeit money or a stolen credit card.
  • Going to work with the goal of stealing money from your employer.
  • Entering an apartment complex with the goal of breaking into mail boxes and taking identification and other personal information.

If you or someone you know has been charged with theft or burglary in Los Angeles, please call criminal defense attorney Justin Lo at (310) 284-7385 to schedule a consultation and learn about how you can fight for your rights and freedom.

Residential Burglary vs. Commercial Burglary

In California, burglary is separated into two types under Penal Code section 460: first degree and second degree burglary.1 The difference in burglary type depends on whether the burglary took place in a residential or a commercial structure.

First Degree Burglary (Residential Burglary”)

Entering a home, condominium, apartment, a trailer or any type of building that someone lives in is first degree burglary.2 The owner or inhabitant of the place can live there even if they are temporarily absent.3 First degree burglary is a felony offense and punishable in California prison for 2, 4 or 6 years.4

Second Degree Burglary (Commercial Burglary”)

Entering any structure with the intent to commit a crime that is not where someone lives or inhabits is burglary in the second degree.5 Second degree burglary can be charged as either a felony or misdemeanor. If charged as a misdemeanor, the jail sentence can be up to 1 year while a felony charge of second degree burglary is punishable in prison for 16 months, 2 years or 3 years.6 The most common second degree burglary charge involves shoplifting/petty theft under Penal Code section 484, subdivision (a), and Penal Code section 459.5.

Elements Required for a California Burglary Conviction

Under California law, each of the two elements below must be met for a conviction of burglary under Penal Code section 459:

  • You entered a building or some type of structure; AND
  • When inside the building or structure you intended to commit theft or some felony crime.7

If any of the elements cannot be clearly met, a conviction cannot occur or you have stronger bargaining position to either reduce or dismiss the charges against you.

Punishments for Burglary in California

For criminal defendants charged with burglary who are not United States citizens, a criminal conviction for burglary can have serious immigration consequence that include removal or deportation. Please call (310) 284-7385 to learn more about your options.

Residential Burglary (First Degree)
Code SectionPenal Code, § 459
Violation TypeFelony
Custody TimeA prison sentence of either 2, 4 or 6 years.
Other Possible PenaltiesMaximum fine of $10,000.
Additional ConsequencesA strike under California Three Strikes Law.
Commercial Burglary (Second Degree)
Code SectionPenal Code, § 459
Violation TypeCan be charged as a misdemeanor or a felony. Whether a crime is charged as a felony or a misdemeanor depends on the facts of your case.
Custody TimeMisdemeanor burglary can result in up to 1 year in county jail. If convicted of felony burglary, the prison sentence can be 16 months, 2 years, or 3 years.

Related Crimes Often Charged with Burglary

Because burglary can cover a large variety of crimes, many types of associated crimes are often charged. Commonly charged crimes under the Penal Code include:

  • Forcible entry under Penal Code section 603;
  • Possession of Burglary Tools under Penal Code section 466;
  • Possession of Stolen Property under Penal Code section 496, subdivision (a);
  • Petty Theft under Penal Code section 484;
  • Embezzlement under Penal Code section 503;
  • Trespass under Penal Code section 602;
  • Violation of restraining order;
  • Forgery under Penal Code section 470;
  • Carrying false or stolen identification; and
  • Grand theft auto (also known as auto burglary).

Common Legal Defenses

Because most burglary cases depend on circumstantial evidence, a strong legal defense must challenge all allegations and ensure police officer’s followed the law and proper investigative procedure. Legal motions filed in your case can used to exclude any illegally obtained or unfairly prejudicial evidence. All the following areas, if applicable, should be carefully examined in an arrest for burglary.

Improper Police Conduct

In the majority of burglary cases, police officers must make an identification based on the description of the witness. If a police officer’s only stopped and arrested you on a hunch or a vague description, the stop and arrest are possibly illegal and any evidence taken from you could be suppressed in your case.

Unreliable Appearance Descriptions

In emergency situations, information given by witnesses or victims to 9-1-1 operators or police officers are often unreliable because crime happens very quickly and the reporting person may not have had a good look at the burglary suspect. A vague description is weak evidence of a crime.

If your case has multiple witnesses, it is important to speak to each witness and determine what each person saw. If the witnesses give contradictory or different answers, a strong defense of mistaken identification could be made.

If a 9-1-1 call was made identifying you to police officers, it is important to review the 9-1-1 call and identify what information was given to police officers.

Unfair Identification Procedures

In most burglary crimes, a crime is committed and after some time a report is made. A description is broadcast to police patrol cars and anyone who resembles the perpetrator could be arrested and charged with burglary. Unfortunately, mistaken identity, mistaken eyewitness testimony and malicious lying accusers often lead to false and trumped up burglary charges.

Unlike Hollywood movies, most police identifications of suspects do not occur in the police station with several people of similar appearance. In most burglary cases, police officers will conduct an unreliable and unfairly suggestive “field line up” or “field show up” where a suspect is handcuffed, held by police on the street by themselves and then shown to the witness.

In one U.S. Supreme Court case, the victim of a gun point robbery gave a description to police officers. After a few days, someone who resembled the description was arrested in the same area and his photograph was taken. The victim “identified” the defendant through the photograph. The United States Supreme Court later held that the defendant was unlawfully arrested and therefore, all the evidence collected against him from the armed robbery had to be suppressed.8

Legal Right to Own or Possess Property

In California, you probably cannot burglarize your own home or steal your own property. If the defendant is the owner of the property or has a legal right to be there, there is consent and this could be a defense against burglary.9 However, ownership of property may not be enough to defeat a burglary charge if there is a restraining order against you to enter a particular home.10

Common Factual Defenses

In many cases, a thorough investigation of the facts is just as important as the legal motions filed. Those investigations can reveal critical weaknesses in the facts of the prosecution’s case. All the following factual areas should be carefully examined.

Basic Evidence Problems

Factual defenses for burglary usually revolve around the following:

  • Mistaken identity where you were not the burglar;
  • The “victim” is trying to frame you for the crime (often occurs in domestic or family situations); or
  • You committed another crime—such as trespass or shoplifting—but not burglary.

The remaining evidence that cannot be legally excluded through legal motions in court should be challenged to show its weaknesses. Because burglary cases are often circumstantial, the quality of the evidence must be attacked and weakened. In many cases, the district attorney must stretch the facts to show a defendant committed a crime. A strong legal defense does not allow the district attorney to make weak claims that are not supported by the evidence.

In every California criminal jury trial, the district attorney has the responsibility at a jury trial to show beyond a reasonable doubt that a defendant committed the burglary. For a guilty verdict, all 12 jurors must agree that a defendant is guilty. If even 1 juror believes there is a reasonable doubt of the defendant’s guilt, you are not guilty of burglary.

Lack of Specific Intent

The timing of when you decided to commit a crime is crucial against a charge of burglary. If the prosecutor cannot clearly show you had the intent to commit a crime before you entered the premises, it’s very difficult to convict you for burglary.11

Examples of unclear intent to commit a burglary include:

  • Someone enters a store to shop around but later decides to steal something. A burglary has not been committed because the intent to steal only came after the defendant’s entry.
  • An internet cable installer enters a home to install cable but sees some jewelry on a table and then decides to steal it. Although there is a theft, burglary is not committed because he did not go into the home with the intent of stealing something.
  • You enter a store with a group of friends, but you did not know that a few people planned to steal or shoplift some items.

Examples and evidence of intent to commit a burglary before entering a location include:

  • Entering a store with “booster bags,” tools or false price tags used to steal or shoplift.
  • Entering a grocery store with masks and weapons to commit a robbery.
  • Wearing rubber gloves while breaking into a house or a car.
  • Entering a bank with a check you forged and the intent to cash it.
  • Going to work with a plan to stealing money or property that has been entrusted to you by your employer.

Scientific Evidence in Burglary Cases

Although scientific evidence involving DNA, fingerprints and other forensic evidence are often used many burglary investigations, what is NOT at a crime scene is just as important as what is at a crime scene.

In one 2013 California case, People v. Arevalo, the court fully reversed a burglary conviction that was based entirely on DNA evidence with no other witness testimony or admissions by the defendant.12 In this case, a commercial store was burglarized by someone who threw a rock through the window. The only evidence that the defendant committed the crime was the defendant’s DNA evidence on the rock. Despite a guilty verdict, the California Court of Appeal decided that mere DNA near a burglary crime scene was not sufficient evidence and fully reversed the conviction.

In California, DNA or other scientific evidence by itself might not be enough for a conviction of burglary. The specific facts of your case matter, please call (310) 284-7385 to schedule a consultation to discuss your case.

Have Questions?

If you want to speak to a Los Angeles Criminal Defense attorney and have additional questions about burglary, larceny or theft charges, please call the Law Offices of Justin Lo at (310) 284-7385 to schedule a consultation and learn how you can defend your life and freedom.


  1. Pen. Code, §§ 459–460.

    Footnote 1
  2. Pen. Code, § 460, subd. (a).

    Footnote 2
  3. People v. Allard (1929) 99 Cal.App. 591.

    Footnote 3
  4. Pen. Code, § 461, subd. (a).

    Footnote 4
  5. Pen. Code, § 460.

    Footnote 5
  6. Pen. Code, § 1170, subd. (h).

    Footnote 6
  7. CALCRIM No. 1700.

    Footnote 7
  8. United States v. Crews (1980) 445 U.S. 463; Dunaway v. New York (1979) 442 U.S. 200.

    Footnote 8
  9. People v. Gauze (1975) 15 Cal.3d 709, 714.

    Footnote 9
  10. People v. Smith (2006) 142 Cal.App.4th 923.

    Footnote 10
  11. People v. Failla (1966) 64 Cal.2d 560, 565.

    Footnote 11
  12. People v. Arevalo (2014) 225 Cal.App.4th 612, depublished by People v. Arevalo (July 30, 2014, No. S218984) ___Cal.4th___ [2014 Cal. LEXIS 5329, at *1].

    Footnote 12
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