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Defending Burglary Charges in California

Posted by Dmitry Gorin | Jan 12, 2021

Review of Burglary Charges Under California Penal Code 459 PC

California Penal Code 459 PC describes the theft crime of burglary as entering a residential structure, commercial structure, or a locked vehicle with intent to commit to a petty theft, grand theft, or a felony offense.

Defending Burglary Charges in California
Penal Code 459 includes first-degree residential burglary and second-degree commercial burglary.

The moment someone enters a structure with criminal intent, they have committed a PC 459 burglary offense even if they didn't complete the intended crime, such as the taking of property inside.

In California, the burglary laws are divided into separate “degrees:”

  • first-degree is burglary of a residence, and
  • second-degree is the burglary of any other structure, such as a business.

Penal Code 459 first-degree “residential” burglary is always a felony in California and punishable by up to six years in prison.

Second-degree “commercial” burglary is a “wobbler” that can be charged as either a misdemeanor or felony crime.

Our Los Angeles criminal defense lawyers are providing a more detailed review below.

Related California Theft Crimes for Burglary

In the state of California, there are different types of theft crimes that are related to Penal Code 459 burglary, such as:

Penal Code 466 PC – possession of burglary tools,

Penal Code 470 PC – forgery,

Penal Code 211 PC – robbery,

Penal Code 464 PC - burglary of a safe,

Penal Code 487 PC – grand theft,

Penal Code 484 PC – petty theft,

Penal Code 496 PC – receiving stolen property.

Home Invasion Burglary

Among these many theft crimes, burglary stands out as a matter of particular prosecutorial interest. Burglary in its traditional form is breaking into a home at night, intending to steal.

The reason burglary concerns law enforcement more than many other theft crimes is the home invasion, which is defined as:

  • A person who breaks and enters a dwelling with the intent to commit a felony, a larceny, or assault in the dwelling with other occupier's present is guilty of home invasion.

If at any time a person is entering the dwelling armed with a dangerous weapon or another person is present, they can be charged with first-degree home invasion.

The penalties are severe. If convicted of home invasion in the first-degree, it's punishable by up to 20 years in a California state prison.

If convicted of home invasion in the second-degree, it's punishable by up to 15 years in prison and a fine up to $3,000.

What is the Definition of Penal Code 459 Burglary?

 California burglary law reflects this special concern for an invasion of a dwelling. Penal Code 459 PC defines burglary as:

What is the Definition of Penal Code 459 Burglary?
PC 459 describes burglary as entering a structure with intent to commit to a petty theft, grand theft, or a felony.
  • Any person who enters into any of a long list of buildings, railroad cars and containers, locked vehicles, aircraft, or mines, intending to commit larceny, which is theft, or any felony.

California law clearly criminalizes entering structures to commit a serious crime.

Auto burglary 

The structures, though, don't stop at buildings. Penal Code 459 PC clearly includes theft from an auto as a burglary crime.


By contrast, Penal Code 459.5 PC defines only as shoplifting, entry into a commercial establishment intending to commit larceny, where the stolen property's value did not exceed $950.

Thus, entries into commercial establishments to steal things of lesser value carries a lesser shoplifting, rather than burglary, charge.

If the commercial-establishment theft is an item or items of greater value, Penal Code 459.5 elevates the shoplifting crime to burglary.

What are the Penalties for PC 459 Burglary?

As to burglary penalties, California law reserves the major distinction for whether the structure that the defendant enters is inhabited, in other words, a dwelling.

First-degree burglary 

Burglary of the first degree any such entry into an inhabited building, while entries into uninhabited buildings are only burglary of the second degree.

What are the Penalties for PC 459 Burglary?
The penalties for a burglary conviction will depend on whether the case was for a felony or misdemeanor.

Penalties for a first-degree burglary, which is always a felony include:

  • two, four, or six years in a California state prison,
  • a fine up to $10,000,
  • a strike under the three strikes law,
  • formal probation.

Second-degree burglary 

Second-degree burglary is a “wobbler” that can be charged as either a misdemeanor or felony crime. A misdemeanor conviction is punishable by:

  • up to one year in the county jail,
  • a fine up to $1,000,
  • summary probation.

If convicted of a felony, it's punishable by the same penalties listed above.

As you can see, entering an inhabited building for crime is a much more serious crime. Recall the above concern over home invasion.

How Can I Fight Burglary Charges?

Burglary's precise elements (CALCRIM 1700), each of which the prosecutor must prove beyond a reasonable doubt, give rise to significant defense opportunities by our Los Angeles criminal lawyers, such as:

  • lack of intent,
  • mistaken identity,
  • mistaken observations,
  • mistaken intent,
  • inconsistent eyewitness accounts,
  • false accusation, and
  • police misconduct.

Poor eyewitness recall can all create reasonable doubt under cross-examination by our attorneys.

It might also be possible to beat a PC 459 burglary charge because the defendant's actions were not technically burglary, or not burglary of the first-degree, for example when the defendant did not:

  • enter into a qualifying structure, whether a building or vehicle;
  • enter an inhabited structure, that is, a dwelling;
  • enter intending to steal an item or commit a felony;
  • enter to steal an item or items of sufficient value beyond shoplifting.

Burglary charges also warrant the same constitutional rights and criminal procedures for other criminal charges.

Those rights include a right against unreasonable search and seizure, the violation of which we can argue to suppress incriminating evidence.

Violation of that right or your right to counsel can even lead to suppression of a confession.

Criminal procedures guarantee preliminary hearing, discovery, motions to suppress, motions to dismiss, and other due process to ensure that your defense lawyers has the opportunity to preserve and exercise your rights to their best effect.

Criminal Defense for California Burglary Charges

If you have been charged with California Penal Code 459 burglary, our experienced Los Angeles criminal defense lawyers have to skill to obtain the best possible outcome.

We might be able to advocate successfully for an alternative to prosecution, early disposition court, or pretrial diversion.

Criminal Defense for California Burglary Charges
Call Eisner Gorin LLP to learn how we can defend you.

We know how handle burglary charges to minimize your risk and maximize your positive outcome.

We have the trial victories prove our ability to effectively handle the most serious criminal charges.

It might be possible to negotiate with the prosecutor to avoid the formal filing of charges before court, known as prefiling intervention.

Eisner Gorin LLP is a top-ranked criminal defense law firm representing people throughout Southern California, including LA County, Orange County, Ventura County, Riverside and San Bernardino.

We are located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.

Our main office is in the San Fernando Valley next to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for an initial consultation at (310) 328-3776.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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