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California Burglary Laws | California Penal Code 459 PC


California Burglary law under Penal Code 459 PC defines burglary as the act of entering into a structure or locked vehicle with the intent to commit  grand theft (taking something worth more than $950), petty theft (taking something worth less than $950) or any felony. There is a common myth burglary is associated with theft. The law categorizes burglary into two degrees. When the act involves unauthorized entry into a residential space like house, hotel room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel it is categorized as first-degree burglary, also known as “residential burglary. This is always considered a felony offense. On the other hand, if the someone enters in a commercial building with intend to commit a felony, the crime is classified as second-degree burglary or “commercial burglary.” This is a “wobbler” offense, meaning it can be charged either as a misdemeanor or a felony, depending on various factors like the defendant’s criminal history and the specifics of the case.

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.

Burglary – Penal Code 459 PC Elements:

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 she/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 Are the Penalties For Penal Code 459 PC?

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

Immigration Consequences

A burglary conviction under California’s Penal Code 459 PC can have severe immigration consequences, including deportation and ineligibility for various forms of immigration relief. Here, we explore the potential immigration consequences of a burglary conviction under California law.

Under the Immigration and Nationality Act (INA), certain criminal convictions can make a non-U.S. citizen deportable. These include “aggravated felonies” and “crimes involving moral turpitude” (CIMTs).

The INA lists burglary as an aggravated felony if the term of imprisonment is at least one year. Therefore, a first-degree burglary conviction in California, which carries a sentence of up to six years, could be considered an aggravated felony for immigration purposes if the sentence is one year or more. This would make the individual subject to deportation.

Burglary can also be considered a CIMT, depending on the specific circumstances of the case. Crimes involving moral turpitude generally include conduct that is inherently dishonest, fraudulent, or deceitful. A burglary conviction, particularly one involving residential burglary, could be categorized as a CIMT, thereby making the individual deportable.

Legal Defenses – 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 PC459 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.

Los Angeles Burglary Defense Lawyer

If you have been charged with burglary, it is imperative that you find a Los Angeles burglary crime defense lawyer 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.

Related Crimes

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 Penal Code 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 PC459).

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 PC459 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.

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