Burglary Laws in California

INFORMATION, RESOURCES and HELP on California Penal Code PC 459 (459PC) - Burglary
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Southern California Criminal Defense
205 South Broadway, Suite 606
Los Angeles, CA 90012

WHAT IS A BURGLARY UNDER PC 459?

Most people believe that a California burglary under PC 459 is limited to residential burglaries.  This is incorrect.  

Under California law a burglary crime, or a violation of PC 459 (Penal Code section 459) occurs any time a person enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, structure, a room or a locked vehicle . . . . . with the intent to commit theft or any felony.  

The structure in a burglary can be a dormitory room, an apartment, a hotel room and any other number of structures or rooms.  All of those entries are burglaries under PC 459.  

Example: For instance if a person enters into a home that is for sale with the intent to steal something inside, that person is guilty of burglary under PC 459.  

Example: The same would apply to a garage under PC 459.  A person who enters a neighbor’s garage with the intent to steal something or to commit any felony is guilty of burglary in violation of PC 459. 

Example: Going into a store with a false credit card with the intent to use it is a burglary under PC 459.  The same would apply to an office building that is entered with the intent to commit a felony – that is a burglary. 

Burglary under PC 459 is not limited to entering a structure with an intent to steal, it applies to any felonious intent. 

Example: A person who enters a woman’s bedroom with the intent to commit rape is also guilty of burglary. In violation of PC 459.  

Example: A jealous husband who is invited to the home of his wife’s secret lover who enters with the intent to assault or murder her lover is guilty of burglary in violation of PC 459.  A person who enters any structure with the intent to commit any felony and succeeds is not only guilty of the intended felony but also of burglary in violation of PC 459.   

Burglary under PC 459 applies to any felony. The perpetrator need not steal anything – he or she only has to harbor the intent to steal or to commit a felony upon entry – that is a burglary under PC 459. One need not break into a structure to commit a burglary under PC 459. PC 459 provides an exception for automobiles. PC 459 requires that an automobile be “locked” in order for a theft from a vehicle to be an automobile burglary under PC 459.

IS BURGLARY IN CALIFORNIA A FELONY OR A MISDEMEANOR?

Whether a burglary is a felony burglary or a misdemeanor burglary usually depends on the value of the property the perpetrator intends to steal and when he enters. If a person enters a department store after hours with the intent to steal, he is guilty of commercial burglary which may be charged either as a felony or a misdemeanor. [1] Many people are charged with shoplifting or “commercial burglary”. If he goes into a store with the intent to steal and the value of the property is less than $950, he is not guilty of burglary, but instead shoplifting which is a misdemeanor. In order to qualify for a felony burglary the value of the property intended to be stolen must be over $950. 

WHAT IS THE PENALTY FOR BURGLARY?

There are different penalties for burglary. Burglary in the first degree or burglary of an inhabited dwelling is a felony and  provides the harshest penalty.  Burglary in the first degree is punishable by imprisonment for two, three, or six year. [2] Further, probation may not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach or inhabited floating home or the inhabited portion of any other building. All other felony burglaries are punishable by a year in the county jail or by sixteen months, two, or three years in custody. [3] In unusual cases the court may grant probation in the aforesaid burglaries provided it states its reasons on the record. [4] If a person enters a store during business hours and the amount stolen or attempted to be stolen is $950.00 or less, it is a misdemeanor violation of PC 459.5 and may not also be charged as a burglary. [5]

ARE THERE ANY DEFENSES TO A BURGLARY CHARGE UNDER PC459?

There are any number of defenses to a burglary charge.  

Example: For instance, let us say you walk by your neighbor’s house and see a small TV on a tool counter, one you believe was taken in a burglary of your home sometime back. You enter your neighbor’s garage with the intent to take the TV which you believe was taken in the burglary of your home. When you get home, your wife tells you one of your children borrowed the TV at about the time your house was the subject of a burglary. Under those circumstances you are not guilty of burglary even though you entered your neighbor’s garage with the intent to take his property and thus commit a burglary. [6] 

Example: Let us assume you go into an open house in your neighborhood, not with the intent to commit burglary but just to look at the house.  You see a beautiful Rolex watch just lying on an end table and you take it - are you guilty of burglary?  No, because you did not enter with the intent to commit a burglary – you only entered with the intent to view the property, not to commit a burglary under PC 459 – the intent to steal was formed after you had entered. 

Example: To go even further, let us say you go into a museum with a friend and you see your friend take a priceless artifact from the sixteenth century and place it in his pocket making  you a witness to an apparent burglary under PC 459.  Are you also guilty of burglary, after all you kept your mouth shut? No, because you didn’t have knowledge ahead of time of his intent to commit a burglary and you didn’t help him commit the burglary. [7] The other defenses to burglary are too numerous to mention in this brief article. 
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PC 459 (459PC) California Penal Code - Burglary

California Penal Code PC 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.

PC 459.5 (459.5 PC) California Penal Code - Burglary

California Penal Code PC 459.5 

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. 

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

PC 460 (460PC) California Penal Code - Burglary

California Penal Code PC 460

(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. 

(b) All other kinds of burglary are of the second degree. 
(c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.

PC 461 (461PC) California Penal Code - Burglary

California Penal Code PC 461. Burglary is punishable as follows: 

(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. 

(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

PC 462 (462PC) California Penal Code - Burglary

California Penal Code PC 462
 
(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach as defined in Section 635 of the Vehicle Code, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or the inhabited portion of any other building. 

(b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record.


PC 462.5 (462.5 PC) California Penal Code - Burglary

California Penal Code PC 462.5 

(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a felony custodial institution burglary. In any case in which a person is convicted of a misdemeanor custodial institution burglary, such person shall be confined in the county jail for not less than 90 days nor more than one year except in unusual cases where the interests of justice would best be served by the granting of probation. 

(b) As used in this section, "custodial institution burglary" shall mean a violation of Section 459 on the grounds of any jail or correctional institution with the intent to steal items to use or convert for use as weapons, escape tools, or intoxicating drugs.

(c) If the court grants probation under subdivision (a), it shall specify the reason or reasons for such order on the court record. 

(d) Any person convicted of custodial institution burglary shall serve his or her sentence, including enhancements, consecutive to any other sentence in effect or pending. The felony sentence shall be calculated under Section 1170.1.

PC 463 (463PC) California Penal Code - Burglary

California Penal Code PC 463

(a) Every person who violates Section 459, punishable as a second-degree burglary pursuant to subdivision (b) of Section 461, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or pursuant to subdivision (h) of Section 1170. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 240 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. For purposes of this section, the fact that the structure entered has been damaged by the earthquake, fire, flood, or other natural or manmade disaster shall not, in and of itself, preclude conviction. 

(b) Every person who commits the crime of grand theft, as defined in Section 487 or subdivision (a) of Section 487a, except grand theft of a firearm, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or pursuant to subdivision (h) of Section 1170. Every person who commits the crime of grand theft of a firearm, as defined in Section 487, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in the state prison, as set forth in subdivision (a) of Section 489. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 160 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. 

(c) Every person who commits the crime of petty theft, as defined in Section 488, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of a misdemeanor, punishable by imprisonment in a county jail for six months. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 90 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory minimum jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 80 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. 

(d) (1) For purposes of this section, "state of emergency" means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. 

(2) For purposes of this section, "local emergency" means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. 

(3) For purposes of this section, a "state of emergency" shall exist from the time of the proclamation of the condition of the emergency until terminated pursuant to Section 8629 of the Government Code. For purposes of this section only, a "local emergency" shall exist from the time of the proclamation of the condition of the emergency by the local governing body until terminated pursuant to Section 8630 of the Government Code. 

(4) Consensual entry into a commercial structure with the intent to commit a violation of Section 470, 476, 476a, 484f, or 484g of the Penal Code, shall not be charged as a violation under this section.


PC 464 (464PC) California Penal Code - Burglary

California Penal Code PC 464. Any person who, with intent to commit crime, enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of acetylene torch or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or by use of nitroglycerine, dynamite, gunpowder, or any other explosive, is guilty of a felony and, upon conviction, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for a term of three, five, or seven years.

PC 466 (466PC) California Penal Code - Possession of Burglary Tools

California Penal Code PC 466. Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in Section 459 shall be deemed to be a building within the meaning of this section.


Footnotes:

[1] Crimes that the prosecutor may charge as a felony or a misdemeanor or commonly referred to as “wobblers.”
[2] P.C. 461
[3] PC 461
[4] P.C. 462
[5] P.C  459.5
[6] This defense to burglary is commonly referred to as a reasonable mistake of fact defense.
[7] To be an “aider and abettor” of a burglary you must have knowledge of the burglar’s intent to commit a burglary and you must help him in some way. Mere presence at the scene of a crime is not a crime.

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Have you been accused of Felony or Misdemeanor Burglary (Residential or Commercial) in California? Criminal Defense Lawyer Vincent Oliver has been defending the accused for over 30 years in Los Angeles and has defended clients in over 300 criminal jury trials. 

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Vincent Oliver Law
Los Angeles and Southern California Criminal Defense
205 South Broadway, Suite 606
Los Angeles, CA 90012
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