Burglary charges are severe accusations that can result in a felony or misdemeanor penalties, depending on your case's specifics and facts. If you or a friend is under investigation for, charged with or awaiting trial for an alleged crime of burglary, working with a defense attorney who knows the ropes is a decision you cannot regret.

Early intervention into the alleged burglary charge by a reliable attorney can significantly impact the case's outcome. Our skilled attorneys at Los Angeles Criminal Attorney have in-depth knowledge and a long record of success representing clients facing burglary charges, and we can help you too.

We will help you maneuver the complex legal justice system and challenge the alleged charge to obtain a desirable outcome, which could be a lighter sentence, a plea bargain, or dismissal of the case.

Burglary Definition Under Penal Code (PC) 459

PC 459 defines the offense of burglary as entering a building (commercial or residential) or any other type of property with the criminal intent to commit petty theft, grand theft, or a felony offense once inside. As you can see in this legal definition of burglary, "intent" and "entry" are the primary elements of this crime.

For the sake of this law, you "enter" a building, structure, or another person's property when a portion of your body or body part crosses the property's boundary. Here are examples of acts that can attract burglary charges under PC 459:

  • Breaking another person's car window or windscreen to steal an item inside you think could be valuable.
  • Entering another person's business or home with the criminal intent to steal an item inside.

Generally, entry and criminal intent are the main reasons you could PC 459 violation charges, even if the structure or property in question were unlocked or open at the time of the offense. That means you could be guilty of PC 459 violation, even if the intended theft or felony offense were unsuccessful.

How a Defense Attorney Can Help on the Alleged Burglary Charges

You have a constitutional right to have an attorney represent your best interests on any alleged criminal charge. A defense attorney can stand up for you to represent your best interests soon after an arrest on allegations that you are a culprit in a burglary case to secure a desirable outcome.

Below is the importance of hiring an attorney if you are under investigation or arrest for an alleged burglary charge under PC 459:

He/she Can Help With the Police Investigative Questioning

What you say to the police officers during an investigation can negatively impact the alleged case's outcome because the prosecutor can use your words or testimony against you. If you cannot remain silent, you should seek advice from your attorney during the police questioning to avoid disclosing incriminating information unknowingly.

He/she Will Represent You at the Bail Hearing

The court can allow you to post bail to protect your innocence, pending the alleged PC 459 violation charge judgment at trial, which can occur months or even years after an arrest. At the bail hearing, which typically occurs immediately after the arraignment, the court will determine your bail eligibility and the amount you should pay to secure freedom.

Some of the factors the judge will consider at this hearing include the following:

  • The possibility of returning to the court after posting bail
  • The alleged crime severity and nature
  • Your community ties
  • Your record of abiding by the court's requirements after obtaining a release on bail
  • The likelihood of leaving the state or country after obtaining your freedom (flight risk)

In addition to increasing your chances of qualifying for a jail release on bail, your attorney can provide mitigating arguments to convince the judge you deserve the minimum bail amount possible for your case.

He/she Can Gather Applicable Evidence

You will also rely on your attorney to gather the necessary evidence and interview eyewitnesses when preparing defenses to challenge the alleged PC 459 violation charge. Your defense attorney can also work to ensure the arresting officers do not violate your constitutional rights during the investigation process.

He/she Can Work to Resolve the Alleged Charge

Sometimes, burglary allegations or charges can be resolved out of court, meaning you do not have to go through the usual prosecution process to challenge the charges for the possible outcome. Because jury and bench trials are generally costly in terms of resources, the prosecutor could agree to a plea bargain.

Typically, during the plea bargaining process, your attorney will negotiate with the prosecutor to have the alleged burglary charge reduced or dropped. However, you must enter a "no contest" or "guilty" plea and waive your rights to a trial hearing in exchange for a light penalty the prosecutor will offer during the negotiation.

Your defense attorney will evaluate the weaknesses and strengths of the prosecutor's case and the potential penalties you could face upon conviction to determine whether to take a plea bargain. If there is no favorable plea bargain offer, your attorney can take the case to trial to challenge the allegations for the best attainable outcome.

He/she Can Help You Obtain a Favorable Verdict at Trial

While the trial is the most tricky phase of the criminal justice system, a seasoned defense attorney can make the difference between conviction and dismissal of the alleged charges. During this hearing, the prosecutor will have a legal burden to convince the court the burglary allegations you are facing are true beyond a reasonable doubt to secure a conviction against you.

To secure a conviction against you for the alleged PC 459 violation charge, the prosecutor must prove the following elements of the crime:

  • You did enter a building, structure, a room within a building, or a locked vehicle
  • When you did that, you had the intent to commit a theft offense or any felony once inside
  • One or more of the facts listed below are true:
    • The structure you entered was not a commercial building
    • The value of the property or item you had the intent to steal exceeded $950
    • The structure you entered was a commercial building, but you did so after work or business hours

When challenging the alleged charge, your defense attorney will raise defenses that can challenge and weaken the above elements for a favorable judgment on your case.

Understanding First-Degree and Second-Degree Burglary Cases

PC 459 divides the crime of burglary into two categories or degrees, which are different in the eyes of the law, namely:

  • First-degree (FD) burglary
  • Second-degree (FD) burglary

Belief is a brief explanation of these two categories of burglary respectively:

First Degree (FD) Burglary

Also known as residential burglary, FD burglary is a felony that can result in severe consequences upon conviction. According to PC 459, you commit FD burglary when you enter an inhabited structure with the intent to commit a felony or theft once inside. For the sake of this statute, an inhabited structure or building could include (but is not limited to) any of the following:

  • Floating home
  • Vessel
  • Apartment
  • House
  • Tent
  • Recreational vehicle
  • Hotel rooms

Even if the structure or building in question were unoccupied at the time of the offense, the court would consider it "inhabited" if people rely on it for dwelling purposes. For instance, entering someone's apartment knowing the owner is on vacation could qualify as first-degree or residential burglary.

The potential sentence you will are likely to face upon conviction for FD burglary could include the following:

  • Formal or felony probation
  • A fine not exceeding $10,000
  • Up to six (6) years of custody in the state prison

In addition to the above sentence, a residential burglary charge conviction will also count as a "strike" under the three strikes law (PC 667). According to this statute, your sentence for PC 459 violation could double if you are a "second striker," meaning you have one severe or violent felony on your record.

On the flip side, if you have two violent felony convictions or strikes on your record, the court will consider you a "third striker" upon a conviction for a residential burglary charge under PC 459. In that case, you could face twenty-five (25) to life in prison under the three strikes law.

Second Degree (SD) Burglary

Unlike the residential burglary charge that covers residential or inhabited structures, the second-degree burglary charge covers commercial establishments and any other structure other than a dwelling or a residence. Since it is a wobbler offense, the prosecutor can file this charge as either a misdemeanor or felony, depending on your unique case's facts.

As a felony, a conviction for the alleged SD burglary charge can attract the following probable penalties:

  • Up to three years in jail
  • $10,000 maximum fine
  • Felony probation

However, when the prosecutor files your burglary charge as a misdemeanor, a conviction will result in the following probable punishment:

  • A fine not exceeding $1000
  • Not more than one year in jail
  • Misdemeanor probation

It is important to remember that you can face both rape and burglary charges when you enter an inhabited structure with the intent to commit rape offense which is a felony.

Common Viable Defenses for the Alleged Burglary Charge Under PC 459

An experienced attorney will have various legal defenses to challenge the alleged burglary charge for the best possible outcome. Since every case has its unique evidence and circumstances, your attorney will review your case thoroughly to prepare defense arguments that can give you a favorable result.

The common and best legal defenses most attorneys will use to challenge burglary charges under PC 459 include (but are not limited to):

You Did Not Enter the Alleged Structure or Building

Remember, under the legal definition of burglary, you are only guilty of PC 459 violation if you entered or crossed the alleged structure or building's boundary. Hence, your attorney can challenge the prosecutor's allegations by arguing with proper evidence that you did not cross the alleged structure's external boundary to obtain a lighter charge or case's dismissal.

You Did Not Have the Intent to Commit a Felony or Theft Before Your Entry into the Alleged Structure

"Intent" is another critical element in a PC 459 violation charge prosecution. If you did not have the criminal intent to commit theft or any felony offense upon entering the structure, you would not be guilty of the alleged burglary charge.

Since the prosecutor must prove this element beyond a reasonable doubt, your defense attorney can raise doubt about your mental intent to convince the court to drop or reduce the alleged burglary charges.

The timing of your mental intent is also vital in a burglary charge prosecution. If your intent to commit theft formed after entering the structure or establishment, you would not be guilty under PC 459.

You Were Reclaiming or Retrieving What is Legally Yours

In some burglary cases, a skilled defense attorney can apply a claim of ownership as a defense argument to challenge the prosecutor's case against you for the best attainable outcome. For instance, your attorney can argue that your motive when entering the alleged structure was to pick or retrieve an item or property you believe you legally own.

Even if you do not own the house or structure in question, the court could consider this defense argument reasonable for the best possible outcome.

You are Factually Innocent

Claiming or arguing that the allegations you are facing are untrue is also an applicable defense to burglary charges. Lawmakers and judges understand that there are chances that you could be factually innocent of the alleged charge. For instance, that could happen because of the following possible reasons:

  • You are a victim of mistaken eyewitness identification, which is possible because you have a similar name or height as the alleged perpetrator
  • Someone with vengeful intent or mental problems could be falsely accusing you of burglary because he/she wants to revenge on you
  • The evidence against you is misleading, for instance, your fingerprints. That is possible if you were at the crime scene a few days before the alleged crime for legitimate and innocent reasons

These scenarios are enough reasons to hire an attorney if you are under arrest or investigation for an alleged PC 459 violation charge. Even if the evidence and the allegations against you appear damaging, a seasoned attorney will know the best defenses to weaken the prosecutor's case for a desirable outcome.

You are a Victim of Police Misconduct

Unfortunately, sometimes a police officer can be eager to resolve a crime, compelling him/her to take actions that violate your constitutional rights. Examples of common unjust acts by the police include the following:

  • Violating your legal right against unlawful and unreasonable searches
  • Coercing you to confess during an investigation
  • "Fabricating" or "planting" incriminating evidence

When your attorney detects an act of police misconduct in the context of the alleged burglary case, he/she can bring a Pitchess motion at the pretrial hearing. If granted, this motion will allow the attorney to determine whether other defendants have had similar complaints or issues about the arresting officer (s) in the past.

If your attorney can prove to the prosecutor or the judge that the arresting officer has questionable conduct or behavior, the court could dismiss the alleged PC 459 violation charge.

Offenses That are Related to the Alleged PC 459 Violation Charge

The alleged PC 459 violation charge could be accompanied by other similar or related additional charges, depending on your specific case's facts. Some of these closely related crimes include:

Grand Theft

Often a prosecutor will charge you with grand theft if he/she cannot convict you for the alleged burglary charge due to insufficient evidence. PC 487 is the statute that defines the offense of grand theft. According to this statute, the prosecutor can secure a conviction against you if his/her evidence is sufficient to prove the following facts or "elements of the crime":

  • You did take another person's property or asset
  • The property in question is worth $950 or above

It is important to note that if the property in question is a firearm, the prosecutor will pursue grand theft charges against you regardless of its value. A conviction under PC 487 will carry a jail term of one (1) year to three (3) years, depending on your case facts and criminal record.

Possession of Burglary Tools

As the name suggests, having burglary tools in your possession with the criminal intent to commit burglary is also a crime chargeable and punishable under PC 466. This statute also makes it unlawful to alter or make a key without the permission of the legal owner of the property or establishment that this key will unlock.

For the sake of this statute, burglary tools could include (but are not limited to) the following:

  • Crowbar
  • Pliers
  • Slim jims
  • Screwdrivers

When the police arrest you while committing or a few minutes after committing burglary and you have burglary tools in your possession, the prosecutor could charge you with both PC 466 and PC 459 violations. A conviction under PC 466 will attract a prison sentence of not more than six months.


Another common crime associated with and related to burglary is robbery. According to PC 211, you commit the offense of robbery when you take someone's property or item using force, threat, or fear to accomplish the act. The prosecutor presiding over your case could file both burglary and robbery charges against you if:

  • You did enter a dwelling, vehicle, apartment, or any other location or place that belongs to another person
  • Upon your entry, you did use fear, force, or threat to obtain an item from the individual on the premises
  • You had the criminal intent to do so before or upon your entry into the premises

The main difference between burglary and robbery is that the PC 211 violation charge involves violence or threats and the “actual” unlawful taking of another person's property. According to PC 211, robbery is chargeable and punishable as a felony. The punishment you could face upon conviction could include up to five years of detention in prison.


PC 602 defines the offense of trespass as entering someone's property or establishment without the owner's consent. While it could seem that anytime a person commits burglary, he/she automatically commits a trespass offense, that is not the case in the eyes of the court.

Unlike PC 459 violation charges, the prosecutor’s primary focus in a trespass charge is whether the other individual was aware of your presence or entry on his/her property. If you are in legal custody for an alleged burglary offense, your attorney can negotiate with the prosecutor to reduce the charge to a lighter offense, like trespass under PC 602.

Generally speaking, most violations of PC 602 are misdemeanors and sometimes infractions. If you are guilty of a misdemeanor trespass offense, you should expect a jail term of not more than six (6) months, a fine not exceeding $1000, or both.

Expunging a Burglary Charge Conviction

Fortunately, burglary is not one of those severe offenses that can disqualify you from obtaining an expungement under PC 1203.4. Expungement is typically a post-conviction relief option that allows you to withdraw your initial plea of "guilty" or "no contest" to re-enter a new plea of "not guilty."

If the court grants your PC 1203.4 petition, you should be happy because an expungement will release you from several negative consequences of having a conviction on your record. Some of the invaluable benefits of obtaining an expungement after a burglary charge conviction include the following:

  • It helps you obtain professional licenses to follow your career path
  • It helps or makes it less challenging to find a reliable employment
  • It gives you the personal satisfaction of knowing you do not have a criminal record
  • It makes it possible to join professional organizations

Find a Seasoned Defense Attorney Near Me

We at Los Angeles Criminal Attorney are ready to listen to you and take your case if you are under investigation or arrest on suspicion that you are a suspect in a burglary case. We invite you to call us at 424-333-0943 to discuss the allegations you are up against with our understanding defense attorneys.

We are available 24/7 to ensure you do not miss any chance to challenge the alleged charge for the best possible outcome.