CA Penal Code 459

Burglary Laws

Burglary in the state of California, CA Penal Code 459[1], is different from theft and robbery. It is, in itself, it’s own crime and because of this it has it’s own qualifications and it’s own punishments. CA Penal Code 459 is when a person, upon entering a structure intends to commit a crime. Burglary is a wobbler, meaning it can either be charged as a misdemeanor or a felony depending on a defendant’s past and the details of the crime.

Burglary is commonly referred to as breaking and entering but the act of “breaking” into a structure is not necessary. A person can be charged with burglary even if they walked through open doors, the important factor however is when they walked through those open doors, did they have the intent to commit a felony.

Two Different Types of Burglary

There are two varying degrees of burglary.  First degree residential burglary is always a felony and is commonly referred to as residential burglary.  First degree residential burglary refers to burglary that takes place in an inhabited dwelling, for instance, a home, apartment, house boat, ultimately any place where people can live; reference Penal Code 459 for a full list of inhabitable structures.

The sentencing of first degree residential burglary is as follows:

  • Two (2), four (4), or six (6) years in state prison
  • Up to $10,000 in fines
  • Probation will not be offered

Second degree burglary is commonly referred to as commercial burglary because it’s burglary that takes place in any structure other than an inhabitable dwelling.  Second degree burglary is a wobbler, meaning it can be charged as either a felony or as a misdemeanor.

Seeking counsel with an attorney who has good standing relationships with DAs and judges can be extremely beneficial when being charged with second degree burglary.  This can be the deciding factor in determining if a defendant will be charged with a felony or a misdemeanor in cases where a person’s character is being assessed.  The sentencing for second degree burglary is as follows:

  • If charged with second degree burglary as a felony:
    • 16-months, two (2), or three (3) years in a state prison
    • Up to $10,000 in fines
  • If charged with second degree burglary as a misdemeanor:
    • Up to one (1) year in a county jail
    • Up to $1,000 in fines

There are some exceptions to the sentences mentioned above:

  • An additional three (3), five (5), or seven (7) year state prison sentence when explosives or torches are used for either first degree or second degree burglary.
  • An additional three (3) to six (6) year state prison sentence if “great bodily injury” was inflicted on another.
  • An additional one (1) to two (2) year state prison sentence if first degree burglary was knowingly committed on a person whose:
    • Over 65 years of age or under 14 years of age
    • Blind or deaf
    • Mentally disabled
    • Paraplegic or quadriplegic
  • If there was a person in the house when a defendant committed first degree burglary then the defendant will get an additional three (3) year state prison sentence for each California violent felony on his or her record.
    • If defendant has not committed a violent felony within ten (10) years this rule doesn’t apply.
  • If a defendant has committed any other felony within five (5) years of a felony burglary conviction, either first or second degree, one (1) additional year will be added to his or her sentence.

Prosecuting Burglary Cases

Burglary cases can be particularly difficult for a prosecutor because they need to prove that prior to entering a structure the defendant had the intent to commit a felony.  The intent is the problematic element in the case for the prosecutor, without the proven intent there cannot be a burglary conviction.

To restate, burglary is defined as having the intent to commit a felony upon entering a structure.  The state recognizes “entering” a building as when any part of a person’s body crosses the outer limit of a structure, or when an object that is under a person’s control crosses the outer limit of a structure, for example a crowbar or a hammer.  The amount of time that either a body part or an object stays in that structure is not important.

It’s important to note that the prosecutor only has to prove that a defendant entered a structure with the intent of committing a crime, the prosecutor does not need to prove that you actually committed the intended crime.  For instance, if a person is caught inside of a store during closed hours with burglary tools but has yet to commit another crime, that person could be charged with burglary.

Some cases are easier than others to prosecute.  For example, an easier case would be the one mentioned above, if a person was caught with burglary tools inside of a closed store.  A more difficult case to prove would be if a person was caught stealing a sweatshirt from a clothing store.  The prosecutor would have to prove that the defendant entered the store with the intent to steal the sweatshirt and didn’t see the sweatshirt after he/she was inside the store and then decide to steal it.  The decision of when to steal the sweatshirt is the difference between a burglary conviction and a petty theft conviction.

Defending Burglary Cases

With the help of a talented criminal defense attorney cases can be dropped and charges reduced.  What makes convictions difficult for prosecutors is the very thing that defense attorneys attempt to point out, the intent.  The most commonly used defense for burglary cases is the lack of evidence proving intent.  Without intent, there cannot be a conviction.

Another common defense is the mistake of fact defense.  This defense strategy tries to prove that a defendant unknowingly took something that he or she thought was alright to take.  If the criminal defense attorney can prove that the defendant took what he or she thought was truly their property then it cannot lead to a conviction for burglary or trespassing.

Having consent is another defense an attorney can use when fighting a burglary charge.  If the property is the defendants than it becomes a viable defense.  However, if the defendant entered another person’s property then that defense strategy becomes increasingly hard to prove.

The final and potentially best defense is that a defendant is innocent.  If a defendant is innocent then an attorney can present the necessary evidence to prove that a defendant did not commit the crime.

Defending against a burglary charge can be a tricky and difficult undertaking.  With that being said, it pays to have a skilled and hardworking attorney who knows the systems in-and-outs on your side.

Similar Charges

A burglary charge can be accompanied by additional charges depending on the details of the case.  For instance, if a person walks into a store and intends to pay with a stolen credit card then that person could be charged with burglary and forgery, CA Penal Code 470.

If during a burglary a person steals more than $950 worth of goods and services, a firearm (value is of no importance), or property directly from a person he or she could be charged with burglary and grand theft, CA Penal Code 487 [2].

Petty theft is the only misdemeanor a person can be charged with in accordance to burglary, all other crimes are felonies.  Petty theft is when upon entering a structure a person steals less than $950 worth of goods and services.  If this happens in addition to burglary a defendant could be charged with burglary and petty theft, CA Penal Code 484 [3].

If a manager of a retail store goes to work with the intent to steal money from the safe then that person could be charged with burglary and embezzlement, CA Penal Code 503 [4].  Embezzlement refers to when a person in a trusted position steals money from the person they were trusted by.

If during a burglary a person uses fear or intimidation to get what he or she wants then that person could be charged with burglary and robbery, CA Penal Code 211 [5].  Robbery occurs when a person uses force, fear, intimidation to get what they desire.

If a person has to break into a building, for example breaking glass or picking a lock, then that person can be charged with burglary and trespassing, CA Penal Code 602 [6].  A defendant cannot be charged with trespassing if he or she was invited into a structure.



[1] CA Penal Code 459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

[2] CA Penal Code 487. Grand theft is theft committed in any of the following cases:

(a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).

(b)Notwithstanding subdivision (a), grand theft is committed in any of the following cases:

(c) (1) (A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250).

(B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or

other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value.

(2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aqua cultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250).

(3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period.(c) When the property is taken from the person of another.

(d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.

(2) A firearm.

[3] CA Penal Code484. (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and

going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud.

[4] CA Penal Code 503. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.

[5] CA Penal Code 211. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

[6] CA Penal Code 602.

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