Overview of California Burglary Law

California Penal Code 459 PC defines burglary as entering a structure, building, room, locked vehicle, or other listed property with the intent to commit theft or any felony offense.

A burglary offense is complete the moment a person enters a structure with criminal intent. The intended crime does not need to be successfully completed. For example, if someone enters a building intending to steal property but leaves without taking anything, prosecutors may still file burglary charges.

California burglary laws divide the offense into two degrees depending on the type of structure involved.

First-degree burglary involves residential property.
Second-degree burglary involves commercial buildings or other structures.

Residential burglary is treated much more seriously because it involves entering a place where people live and may create a greater risk of confrontation.

Your best hope for a favorable outcome is with an experienced California criminal defense attorney at Eisner Gorin LLP. To schedule a consultation, call (818) 781-1570 or contact us here.

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Legal Definition of Burglary Under Penal Code 459

Penal Code 459 states that burglary occurs when a person enters any structure or listed property with the intent to commit theft or another felony.

Examples of structures covered by the law include:

• houses and apartments

• stores and businesses

• rooms and warehouses

• railroad cars

• aircraft

• mines

• locked vehicles

The key issue in most burglary cases is the defendant's intent at the moment of entry.

If prosecutors cannot prove that the defendant intended to commit theft or another felony when entering the structure, the burglary charge may fail.

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First-Degree Residential Burglary

First-degree burglary occurs when someone enters an inhabited dwelling with the intent to commit theft or a felony.

An inhabited dwelling may include:

• houses

• apartments

• condominiums

• inhabited rooms or structures

Residential burglary is always charged as a felony.

Penalties may include:

• two, four, or six years in California state prison

• a fine of up to $10,000

• formal probation in some cases

• a strike under California's Three Strikes Law

Because of the potential danger to occupants, residential burglary cases are aggressively prosecuted.

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Second-Degree Commercial Burglary

Second-degree burglary applies to burglaries involving structures other than inhabited residences.

Examples include:

• retail stores

• offices

• warehouses

• commercial buildings

Second-degree burglary is considered a “wobbler,” meaning prosecutors may charge it as either a misdemeanor or felony depending on the circumstances.

Misdemeanor penalties may include:

• up to one year in county jail

• a fine of up to $1,000

• summary probation

Felony penalties may include state prison time and larger fines.

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Home Invasion Burglary

Home invasion burglary is considered one of the most serious types of burglary offenses.

A home invasion typically involves entering an occupied residence with the intent to commit theft, assault, or another felony while occupants are present.

If the suspect is armed with a weapon or multiple individuals participate in the crime, prosecutors may pursue enhanced penalties.

Because these crimes pose a direct threat to residents, law enforcement agencies treat home invasion cases with particular urgency.

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Auto Burglary

Burglary charges are not limited to buildings.

Entering a locked vehicle with the intent to commit theft or another felony may qualify as auto burglary under Penal Code 459.

Examples include:

• breaking a car window to steal property

• entering a locked vehicle to remove valuables

• entering a vehicle intending to commit another felony offense

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Shoplifting and Burglary

California law distinguishes shoplifting from burglary.

Penal Code 459.5 defines shoplifting as entering a commercial establishment during regular business hours with the intent to steal property valued at $950 or less.

When the value of the property exceeds $950, prosecutors may instead charge the offense as burglary.

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Related California Theft Crimes

Several theft-related offenses are closely connected to burglary cases.

Penal Code 466 – Possession of Burglary Tools

Penal Code 466 makes it illegal to possess tools intended to commit burglary, such as lock picks, crowbars, or other instruments used to break into buildings or vehicles.

Penal Code 470 – Forgery

Forgery involves altering documents, checks, or signatures to commit fraud.

Penal Code 211 – Robbery

Robbery is the crime of taking property from another person through force or intimidation.

Penal Code 487 – Grand Theft

Grand theft involves stealing property valued at more than $950.

Penal Code 484 – Petty Theft

Petty theft involves stealing property valued at $950 or less.

Penal Code 496 – Receiving Stolen Property

Receiving stolen property occurs when someone knowingly buys or possesses property obtained through theft.

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What Prosecutors Must Prove in a Burglary Case

California jury instructions known as CALCRIM 1700 outline the elements prosecutors must prove to convict someone of burglary.

These elements include:

• the defendant entered a building, structure, or locked vehicle

• the defendant intended to commit theft or a felony at the time of entry

If prosecutors cannot prove the defendant had criminal intent at the moment of entry, the burglary charge cannot be sustained.

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Frequently Asked Questions

Do you have to steal something to be convicted of burglary?

No. The crime of burglary is complete once someone enters a structure with the intent to commit theft or another felony. The intended crime does not need to be completed.

Is burglary always a felony in California?

Residential burglary is always a felony. Commercial burglary may be charged as either a misdemeanor or felony depending on the circumstances.

What is the difference between burglary and robbery?

Burglary involves entering a structure with the intent to commit a crime. Robbery involves taking property directly from another person using force or fear.

Can burglary charges be reduced or dismissed?

Yes. Charges may be reduced or dismissed if prosecutors cannot prove intent or if evidence was obtained illegally.

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Legal Defenses to Burglary Charges

Several legal defenses may apply in burglary cases.

Common defense strategies include:

• lack of intent to commit theft or a felony

• mistaken identity

• unreliable eyewitness testimony

• false accusations

• police misconduct or illegal searches

Because burglary requires proof of intent, many defenses focus on whether the defendant actually intended to commit a crime when entering the structure.

If police violated constitutional rights during the investigation, defense attorneys may seek to suppress evidence or dismiss the charges.

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Criminal Defense for California Burglary Charges

A burglary conviction can lead to serious penalties, including prison time and a permanent criminal record.

An experienced criminal defense lawyer may help by:

• challenging the prosecution's evidence

• negotiating reduced charges

• seeking dismissal through prefiling intervention

• advocating for alternative sentencing or diversion programs

Eisner Gorin LLP is a criminal defense law firm representing clients charged with burglary and other serious crimes throughout Southern California.

Our attorneys represent clients in Los Angeles County, Orange County, Ventura County, Riverside County, and San Bernardino County.

Contact our office to schedule a confidential consultation and discuss your legal options.

Related Content:

• What Are Specific Intent Crimes?
• Residential vs. Commercial Burglary
• Difference Between Burglary and Robbery