near me
Penal Code 459 PC – California Burglary Law & Penalties - Tabibnia Law

Penal Code 459 PC – California Burglary Law & Penalties

Penal Code 459 PC defines burglary as entering into a structure or vehicle that is locked and belongs to someone else, with the intent of committing grand theft (taking something worth more than $950), petty theft (taking something worth less than $950) or any felony once inside.

Even if there is no sign of forced entry, you can still be charged with burglary.

  • Commercial burglary and auto burglary are punishable by up to 3 years in jail.
  • The penalties for burglary of a residence are up to 6 years in jail or prison.

Once a person enters a structure with the intent to commit a crime, even if that crime is never actually carried out, it is considered burglary.

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.
In order to convict you of burglary under Penal Code 459 PC, the prosecution must prove that:

  • The defendant entered a building, room within a building or locked vehicle;
  • When s/he entered that building, room or structure, s/he intended to commit either a felony or theft; and
  • There are three major possibilities:
    • The value of the stolen property was $950 or more;
    • The building the defendant entered was not a commercial establishment; OR
    • The building that the defendant entered was a commercial establishment, but she entered it outside of business hours.

The elements of burglary in California are defined by these numbered sentences. In order to convict you under Penal Code 459 PC, the prosecutor must be able to prove each of these elements. You become guilty of burglary as soon as you enter a home or building with the intent to commit grand theft, petty theft, etc. The law does not specify whether or not you have to actually succeed in committing the felony or theft.

What is the difference between first and second-degree burglary?

California Penal Code Section 460 categorizes burglary into first degree burglary, which is a felony, and second degree burglary, which may be charged as a misdemeanor or a felony. First-degree burglary is a break-in to an occupied home. Second-degree burglary occurs when someone breaks into any other kind of building: an unoccupied house, office, factory—whatever doesn’t have people living in it.


The first degree form of burglary is usually referred to as “residential burglary” because it typically involves entering a dwelling that is designed for habitation. Even if a dwelling is not currently occupied, it will be considered inhabited if it was intended to serve as a residence rather than another purpose such as storage.

The defendant may be sentenced to two, four, or six years in state prison if convicted of this felony crime. Probation will not be granted to someone convicted of first-degree burglary unless the court finds that it is in the best interest of justice.

In other words, if one is convicted of first degree burglary, they will be sentenced to prison followed by a period of parole unless mitigating circumstances exist which would warrant a less severe sentence of up to one year in county jail followed by formal felony probation.

A person convicted of first degree burglary may be subject to California’s Three Strikes Law. If a person who has two or more felony convictions and then commits another crime, that person may be sentenced to 25 years to life in prison under California law. Please see article on the Three Strikes Law page for more information on this particular topic.


Second degree burglary involves the breaking of any structure other than a residence or dwelling, and it applies to cases where commercial property is involved. A second degree burglary charge can be either a misdemeanor or a felony. If charged as a misdemeanor, the punishment can be up to one year in county jail. If charged with a felony, second-degree burglary can result in up to 16 months, 2 years or 3 years in state prison.

What counts as a “residence”?

In California, you can be convicted of first-degree burglary if you break into any one of the following properties:

  • An inhabited house;
  • A room within an inhabited house;
  • An inhabited boat;
  • An inhabited floating home;
  • An inhabited trailer coach;
  • An inhabited portion of any other kind of building; or
  • An inhabited hotel or motel room

The term “inhabited” is used to describe a building or structure that someone uses as their home. Even if a person isn’t physically in the house when it’s broken into, that property can still be considered inhabited.

However, a structure is not considered to be “inhabited” if the residents moved out and don’t intend to return—unless they left only because of some sort of disaster.

What is the difference between burglary and shoplifting?

Penal Code 459.5, the California shoplifting law, states:

  • Entering a business establishment,
  • While the establishment is open during business hours,
  • With the intent to steal property worth nine hundred fifty dollars ($950) or less.

So, in other words, shoplifting is a kind of burglary where the defendant enters an open store or business with intent to steal merchandise worth $950 or less (the definition of petty theft).

Proposition 47, passed by California voters in 2014, reduced the penalties for several minor crimes. The initiative also created a new crime of shoplifting.

Before Prop 47 went into effect in 2014, it was theoretically possible to charge shoplifters with second-degree burglary under Penal Code 459 PC — a crime that can carry felony penalties.

In California, defendants who are charged with petty theft face misdemeanor penalties—unless either of the following is true:

  • The defendant has one or more previous convictions for serious crimes, including rape, murder and sex crimes against children;
  • The defendant must register as a sex offender because of a prior conviction.

If either of these circumstances is true, the defendant who commits shoplifting can potentially face the same felony charges as a burglar would under PC 459.20

Can I get a prior burglary conviction reduced to shoplifting?

The answer is yes! If you believe that your prior conviction for burglary qualifies for re-sentencing under Proposition 47, it is best to contact an attorney who is familiar with both California Penal Code 459 and the provisions of the proposition.

Is burglary the same thing as “breaking and entering”?

The crime of burglary is different from the offense of “breaking and entering.” You can be convicted of burglary in California without actually breaking into a property. You can commit burglary if you enter a building through an open or unlocked door or window. You can even commit burglary by entering an open business. No forced entry or trespass is required. Burglary of a vehicle (also known as auto burglary) is the exception to this rule. If a car or other vehicle is locked, you can only commit auto burglary if you break into the vehicle in order to steal it. If you do not meet this definition, then you are not guilty under California burglary and auto-burglary law.

What does it mean to “enter” a structure?

The legal definition of California burglary specifies that you enter a building or other structure. Under PC 459, you are considered to have “entered” a structure if any part of your body—or anything else under your control (such as clothing or an object)—penetrates the area inside its outer boundary.

Windows and attached balconies on the second or higher floor of a building that are designed to be entered only from inside comprise part of a structure’s outer boundary.

Under Penal Code 459 PC, all of the following individuals will be considered to have “entered” a structure:

  • A woman who intends to steal property from inside a house will often remove a screen in order to reach an open window, but she may be caught before she gets the chance.
  • A child reaches through an open window and steals a watch from the windowsill where it had been left by the owner.
  • A man uses a ladder to reach the balcony of a second-story apartment and climbs over its railing onto the balcony in order to sexually assault its female resident.

What Are the Penalties?

The consequences of a conviction for first- or second-degree burglary depend on the circumstances surrounding your case.

First-degree burglary penalties

In California, first-degree burglary (or residential burgling) is always a felony. Sentencing for such an offense may include:

  • Felony (formal) probation;
  • A maximum of two (2), four (4) or six (6) years in state prison.
  • A fine of up to ten thousand dollars ($10,000).26

It is considered a “strike” offense under California’s Three Strikes law.

Second-degree burglary penalties

Penalties for second-degree burglary are less severe than those that apply to first-degree.

In some states, second-degree burglary is a “wobbler” . A “wobbler” is a crime that can be charged either as a felony or a misdemeanor, depending on the prosecutor’s discretion.

If charged and found guilty, the consequences of a felony second-degree burglary conviction may involve:

  • 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

If found guilty of a second-degree/commercial burgling charge, the defendant faces one or more of the following penalties:

  • Misdemeanor (summary) probation;
  • Up to one (1) year in county jail; and/or
  • A fine of up to one thousand dollars ($1,000).30

How Can I Fight a Burglary Charge?

Although penalties for burglary can be severe, there are numerous legal defenses that a skilled California criminal defense attorney can use to fight charges of this nature. Ultimately, prosecutors must prove guilt beyond reasonable doubt—a high hurdle in any case.

Some of the most common legal defenses to Penal Code section 459 are:

Lack of intent

Because “intent” is so important to burglary charges, you can’t be convicted of breaking into a house if you did not intend any criminal activity when entering.

And, of course, a person’s intent is crucial.

To be guilty of burglary, you must have intended to commit a crime upon entering the building.

If you did not form the intent to burglarize a home until after you were inside, then you are not guilty of burglary.

Mistake of fact / claim of right

Mistake of fact (sometimes called “claim of right”) is a legal defense to PC 459 that is related to lack of intent. For example, you would not be guilty under this law 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

Often, the best way to fight a PC 459 charge is simply by showing that you didn’t do it. It’s not uncommon for innocent people to be arrested by mistake.

This may happen because of

  • Mistaken identity (you might be at the wrong place at the wrong time when police are looking for someone else);
  • Incomplete and misleading evidence (for example, your fingerprints were found at the scene of a crime you did not commit; however, they had been there previously for an innocent reason).
  • A person with a grudge is making false accusations against you.

That’s why it is important to hire an attorney once you have been falsely charged with a crime. An experienced lawyer will know how to exploit weaknesses in the prosecution’s case, even if their evidence seems damaging at first glance

A good legal defense can result in reduced or even dismissed charges.

Police misconduct

The police can sometimes be too aggressive in their pursuit of a suspect. In the process, they might use tactics that violate your rights (and get you into trouble).

  • “Planting” or “fabricating” evidence;
  • During a line-up, the officer often asked leading questions to the witnesses.
  • Violating a person’s Fourth Amendment rights by conducting unreasonable searches.
  • Coercing your confession.

When police misconduct is suspected, we can file a Pitchess motion—a request to see whether others have made similar complaints about the officer in the past. If we can show that the officer has a pattern of police misconduct, it may be possible to get your charges dismissed. If the case goes to trial, you might be found not guilty by a jury.


Possession of burglary tools

Penal Code 466 PC makes it a crime to possess burglary tools with the intent use them commit felony breaking and entering (Penal Code 459).(it is also illegal under Penal Code 466 make or alter a key without permission from the property owner)

Examples of burgling tools include:

  • Crowbars;
  • Slim jims;
  • Screwdrivers; and
  • Pliers.

If you carry burglary tools while committing or right after a California burglary, prosecutors can charge you with both Penal Code 459 and Penal Code 466. Possessing burglary tools is a misdemeanor and can result in up to six (6) months in jail.


The crime of Penal Code 470 PC forgery is defined as knowingly creating, altering or using a written document (such as a check), with the intent to defraud.

Most people think of burglary as a crime involving breaking into a building to steal something. If you have the intent to commit forgery when entering a bank or store, then these actions can also be considered violations of Penal Code 459. Forgery is usually prosecuted as a wobbler in California.


Penal Code 211 PC California robbery is the taking of another’s property through force or fear.

You can be charged with both PC 459 and robbery if:

  • You enter another person’s property without permission.
  • If you use force, intimidation or fear to obtain property from another person on the premises,
  • You intended to commit the crime when you entered an area (an important element of PC 459).

The difference between robbery and burglary is, a robbery involves the use of threats or acts of violence in order to steal property from a person or establishment.

Burglary can be committed without the use of force or fear, if a person enters another’s property intending to commit theft or another felony.

In California, robbery is always a felony and punishable by a minimum of two years in state prison. 


Penal Code 602 PC trespass is defined as entering another’s property without permission. Although most people think that committing PC 459 automatically also constitutes a trespass, there are certain exceptions to this rule.

Trespass focuses on whether or not the other person has given you permission to be present in his/her property.

In contrast, California law focuses on the intent behind an act. If you plan to commit a felony or a theft, you will still be charged with burglary or theft. Even if you didn’t commit a trespass when entering the property.

If you are charged with PC 459 but the evidence against you is weak, it may be possible to reduce your charges from intent to commit a crime (PC 459) down to trespass (PC 602).

Trespassing is usually a misdemeanor and may sometimes be an infraction. Aggravated trespass under Penal Code 601 PC is an offense that involves entering property within 30 days of making a threat against the safety of its owner or occupants.

Burglary of a safe or vault/ with explosives

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.

Penal Code section 464 is considered a more serious crime than Penal Code 459. It’s a felony, regardless of where the break-in occurred—whether it’s residential or commercial property. The punishment for violating this section can be up to three (3), five (5) or seven (7) years in prison.

Criminal Defense for Burglary Cases

If you have been charged with burglary, it is imperative that you find a Los Angeles Criminal Defense Attorney who can assess the facts of your case and create an effective legal strategy.

Our experienced Criminal defense attorney and investigators are familiar with the legal and personal ramifications of burglary charges, so they will fight hard to help you get your case dismissed or reduced. Contact us today at 866-713-2159 or fill out our contact form to find out how we can help.

    Get A Case Review Today

    Please prove you are human by selecting the Tree.

    Tabibnia Law
    Based on 21 reviews
    powered by Google
    13:37 13 Sep 22
    HIGHLY RECOMMEND CYRUS! I have been working with Cyrus on a bank fraud case and you will not be disappointed. He is nice and very humble. I never had a problem trying to get a hold of him. Cyrus is in top of your case and answers to emails/text messages promptly. Well talented attorney and his professionalism is to the next level. He is affordable and would work with you depending on your situation.
    Bobby VafaBobby Vafa
    21:59 29 Jul 22
    This correspondence shall serve to memorialize that Cyrus is a excellent attorney, I recommend Cyrus because he is intuitive and has great communication skills. Cyrus is very honest and will never drag a case just to make more money
    DJ CabDJ Cab
    15:28 07 Jul 22
    I am here, writing on the behalf of Mr. Cyrus Tabibnia. From the very first moment we formally introduced ourselves to one another, I felt nothing but sincerity and authenticity from this man. At that very moment I knew, that this was the person ideal to represent me and to do diligence. In which in fact he did do so. He was able to significantly get my DUI and Car Theft charges reduced from felonies to misdemeanors and with one case, completely dismissed. I was not only impressed and satisfied completely, but I was not suprised one bit with the outcome. I highly suggest this gentlemen if you are in deed seeking counsel from someone who legitimately cares, and who will go the extra mile and above and beyond for you.
    Herbert HerreraHerbert Herrera
    16:47 27 May 22
    I was referred to Cyrus Tabibnia through a friend of mine that Cyrus had assisted in the past. The minute that I sat down with the attorney Cyrus Tabibnia for a consultation. I knew that he was the right attorney for my case. I noticed that he was very thorough and technical from the very beginning of our interaction. I was facing deportation for an assault case in which I was clearly defending myself. The ending result was a dismissal and removal of a restraining order after proving that it was a clear case of self defense. Now, thanks to Cyrus I can clearly go back to work and my family. Without worrying about this incident staying on my record. I strongly recommend Cyrus Tabibnia to anyone that is facing legal issues.
    Salvador RiveraSalvador Rivera
    13:41 17 May 22
    My name is Salvador. I was charged with a DUI case in 2021. A close friend of mine recommended that I hire Cyrus Tabibnia. My friend had previously hired Mr. Tabibnia for a criminal case and was very satisfied with his work.I consider myself very blessed and grateful to have met and worked with Mr. Tabibnia. He was a very effective lawyer with great customer service and he obtained excellent results for me on my DUI case and on my DMV license issue. I was very concerned about this case for many reasons, but Mr. Tabibnia explained everything, put me at ease and got me a wonderful outcome! I highly recommend Mr. Tabibnia if you need a great lawyer!"

    Practice Areas

    Locations We Serve