Burglary PC 459

In California, burglary charges are a serious matter — one that can put you behind bars and hurt your record forever.

You may face felony charges, which can come with penalties that can isolate you from your family and loved ones and leave you facing an extreme prison sentence.

That’s why it is essential to act now — before you are convicted.

If you have been accused of burglary, contact the attorneys at Elite Criminal Defense to learn more about your options to take action to mitigate harsh penalties that can alter your life.


How Does California Law Define Burglary?

California law defines burglary under California Penal Code Section 459. This section of the Penal Code states that burglary includes any unlawful entry into a residence or other building with the intent to commit theft (grand larceny or petit larceny) or a felony offense of any kind.

There are two types of burglary under California law:

  • First-degree burglary: When you’re accused of burglary involving a residential building like a home or apartment
  • Second-degree burglary: When you’re accused of burglary involving a commercial building or other structure

The basic crime of burglary is a “wobbler” In California. That means it can be a felony or misdemeanor, depending on the nature of the incident.

For example, if you’re accused of first-degree burglary, you will be charged with a felony. But if you’re accused of second-degree burglary, you could be charged with a felony or misdemeanor.

Penal Code § 459 PC – Specific Definition

Here is exactly how California law defines burglary:

“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.”

As you can see, that lengthy and somewhat confusing definition leaves a lot of room for ambiguity and misunderstandings. That’s why it can be so helpful to speak with a trusted California criminal defense lawyer about your unique situation.

Examples of Burglary

Accused of burglary but not sure whether your case fits the definition? Below are just a few samples of specific scenarios that could lead to burglary charges in California:

  • Kicking in the door of an apartment and stealing electronics
  • Entering a railroad car to take goods
  • Going into an unlocked home with the intent to murder the homeowner

If you have any questions about your burglary charges, do not hesitate to reach out to an attorney. A criminal defense lawyer can provide the tools and resources to take a closer look at your charges and build a strong defense.

intrusion of a burglar in a house inhabited

How Can I Fight a Burglary Charge?

Legal Defenses for Burglary

You do not have to simply accept the charges and face a conviction when you are accused of burglary. You can build a strong defense to fight your charges. In fact, it’s your legal right to do so.

Common burglary defenses include the following:

  • You did not actually enter the building you are accused of burgling
  • You had no intent to commit a crime upon lawfully entering the premises
  • You took items but believed they were yours

However, the specific legal defense for your burglary charges depends on your case’s specifics. If you are unsure what defense strategy is best for your case, contact an attorney and determine your options for potentially reducing or avoiding the penalties for burglary.

Let’s take a closer look at some particular defenses or facts that may help you fight your burglary charge in California.

Lack of Intent

When accused of burglary, one of the more common defenses is a lack of intent. For example, you may not have entered the structure intending to commit a crime. You may have mistakenly entered the wrong residence, thinking you were entering your home. Proving you never intended to take anything or otherwise commit a felony can reduce the penalties you’re facing.

Mistake of Fact

Sometimes, the facts are simply incorrect. For example, you may be accused of auto burglary because the prosecution claims you committed forced entry on a locked vehicle. You may argue, however, that the vehicle was not locked at all.

Factual Innocence

In some cases, one of the best ways to keep your criminal record clean is to show that you did not commit the crime. For example, you may be accused of entering a commercial structure using a crowbar and taking things, leading to penalties under California burglary law. That may lead to a felony burglary charge, but you and your lawyer may argue this is not what happened.

You may have an alibi, for example, that shows you were elsewhere when this felony crime was being committed. Security footage, the word of others, or even other criminal charges, like a DUI, can show you were elsewhere and could not have possibly committed the crime.

Police Misconduct

While law enforcement should keep the peace and ensure criminal offenders are stopped and caught, you may find you were a victim instead. Police entrapment, for example, happens when the police manipulate you into breaking the law when you otherwise wouldn’t have.

If this is relevant to your case, a criminal defense law firm can help you demonstrate that you were entrapped or otherwise the victim of police misconduct.

Penalties for Burglary


The details of your situation will determine the penalties you may face for burglary in California.

The fact that burglary may be either a misdemeanor or a felony makes it a “wobbler” crime. That means you may be facing misdemeanor charges, which may lead to time in county jail, or felony charges, which can leave you in state prison — all depending on the details of what you allegedly did.

The severity of your penalties may also depend on whether you are accused of committing a residential burglary, auto burglary, or commercial burglary.

Enhancements with California’s three strikes law can also impact your case. Under this law, your sentence may be significantly increased if you have been accused of other serious felonies, like sex crimes or other felonies causing great bodily injury to another person. You may need the legal advice of an attorney to overcome these severe sentences and protect your future.

First-Degree Burglary Penalties

First-degree burglary is a felony in California. Accordingly, the potential penalties are severe.

If you’re convicted, you may face the following penalties for first-degree burglary:

  • Fines of as much as $10,000
  • Two, four, or six years in prison
  • A combination of the two

On top of those penalties, you always face the non-criminal penalties like trouble securing employment and housing, as well as damage to your reputation.

Second-Degree Burglary Penalties

Second-degree burglary can be either a misdemeanor or felony. If you’re charged with the misdemeanor version, you may face lighter — but still quite serious — potential penalties.

Here’s the breakdown of the penalties for second-degree burglary in California:

  • Misdemeanor: A fine of up to $1,000, a year in county jail, and/or probation
  • Felony: A fine of up to $10,000; county jail time for 16 months, two years, or three years; and/or felony probation

Offenses Related to Burglary

Burglary is related to a few different offenses that can add to your sentence if you are charged with both, as well as offenses that may have a lighter sentence.

Your attorney can help you navigate any of these criminal offenses and take action when you are accused of committing a crime.

Possession of Burglary Tools – California Penal Code Section 466 PC

Having burglary tools in your possession with the intent to break into a residence or otherwise commit a felony is a criminal charge in and of itself in California. Burglary tools include anything that may be used to break and enter. That includes crowbars, screwdrivers, and anything used to pick locks.

Robbery – California Penal Code Section 211 PC

Burglary and robbery are often confused, but they’re not the same thing. Robbery is another crime that revolves around theft, but robbery is about taking property directly from someone by violence or the threat of potential violence (or having the intent to do so).

Unlike burglary, robbery is always a felony in California.

Grand Theft – California Penal Code Section 487 PC

Grand theft is the theft of any property worth more than $950 in California. This charge covers the theft of a specific dollar amount’s worth of goods or cash, and it may also include taking a motor vehicle or a firearm.

Petty Theft – California Penal Code Section 484 PC

Petty theft includes stealing goods or money worth $950 or less. Anything not included under grand theft may count as petty theft.

Forgery – California Penal Code Section 470 PC

In California, forgery is when you use, alter, or create a document with the intent to defraud someone.

How is that related to burglary? Because you can be charged with burglary for entering a store or bank with the intent to commit felony forgery — for example, forging a check at a local bank.

Burglary of a Safe or Vault/ with Explosives – California Penal Code Section 464 PC

Using explosives to steal from a safe or vault can lead to a felony conviction. Using explosives or torches to open a vault can endanger people, which is in part why this charge is always a felony, rather than a wobbler, under California law.

Trespassing – California Penal Code Section 602 PC

Trespassing covers cases where someone enters or remains on another person’s property without permission from the owner. While trespass is about whether you have permission to be on the premises, burglary is about what you intend to do on the premises, regardless of whether you have permission to be there.

Connect with a Burglary Lawyer 

At Elite Criminal Defense, we understand how devastating a burglary conviction can be. And you may not have the tools and resources to fully understand your options, identify the right defense strategy, and gather the necessary evidence.

We’re here to help. When you are ready to learn more about your options when accused of burglary, contact us for a consultation by calling 619-642-2310 or completing our online contact form.

Contact Us Now

Burglary FAQ 


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

In California, first-degree burglary refers to entering a residence with intent to steal or commit a felony, while second-degree burglary refers to entering other buildings with the intent to steal or commit a felony.

What counts as a ‘residence’?

A residence includes any inhabited building where someone may be living. That may include houses, boats or floating homes, trailer coaches, and other inhabited structures. Talk to your lawyer to determine whether the building in your case is defined as a residence.

What is the difference between burglary and shoplifting?

Shoplifting involves some of the same elements of burglary but is a distinct charge. You can be charged with shoplifting in California for entering an open business with the intent to steal items for sale that are worth less than $950 total.

What is the difference between robbery and burglary?

Robbery and burglary differ because one is considered a violent crime, and the other a property crime. Burglary includes illegal entry into a residence or building with the intent to commit theft or a felony, while robbery involves directly committing that crime against another person.

Is burglary the same thing as ‘breaking and entering’?

Breaking and entering is often a part of burglary offenses, as burglary involves illegal entry into a building. However, breaking and entering is not a required element in order for you to be charged with burglary in California.

What does it mean to ‘enter’ a structure?

In the context of burglary, to enter a structure means to find a way into a structure and to stay there while intending to commit a crime there.

What is the difference between larceny vs. burglary?

Larceny differs from burglary because larceny is simply the act of theft while burglary is the act of entering a premises to commit theft or a felony. The theft — or larceny — doesn’t actually have to take place in order for you be charged with burglary under PC 459.


get a free case
review now

Get your case review within minutes! 100% Free and

Or CALL NOW for even faster assistance!
Conveniently located in the heart of San Diego.

  • Call 619-642-2310
  • Location 8880 Rio San Diego Drive Suite 800
    San Diego, California 92108,
    United States
  • Working Hours Monday - Friday
  • 09:00 am - 05:00 pm
  • Saturday
  • By Appointment
  • Sunday
  • Closed

    Call Now