Under Penal Code 459, California's burglary statute, burglary is entering any residential or commercial structure with the intent to commit a felony or theft. The law differentiates between two forms of burglary: first-degree and second-degree burglary.  First-degree burglary is burglary of a residence. Second-degree burglary is burglary of any other type of structure (including stores and businesses).  Note that burglary is a completely different offense than shoplifting under Penal Code section 459.5.  Burglary under section 459 requires that the intent to steal be formed prior to entering the appropriate commercial structure.  If the intent to steal was formed after the defendant entered the appropriate commercial structure, then the appropriate offense is shoplifting under code section 459.5.  Examples of conduct that constitute burglary are breaking into a house to steal jewelry, breaking into a woman’s apartment to rape her, and entering a department store with the intent to commit credit card fraud.


Under California Penal Code 459, the crime of Burglary has a number of elements, all of which must be proven by a prosecutor beyond a reasonable doubt.  These elements are as follows:

  1. you entered a building, room within a building, locked vehicle, or structure; and
  2. when entering that building, room, vehicle, or structure, you had the intent to commit either a California felony or a California theft;

What is relevant for purposes of Penal Code section 459 is the intent to commit a felony or theft at the time of entering the building, vehicle, or structure.  You can be convicted of burglary so long as you had this intent, even if, after entering the structure, you did not actually commit the theft or felony that you hand intended to commit.

For example, John sneaks into Janet’s apartment.  John and Janet had dated briefly before and John knew that Janet keeps a box of expensive jewelry in her bedroom.  As John is looking for this box in Janet’s bedroom, Janet unexpectedly comes home and sees John.  Although John then had to abandon his plan to steal the jewelry, he is guilty of burglary because he formed the intent to steal prior to entering Janet’s apartment. 

Contrast the above example with the following: Jack is dating Jill and has a key to her apartment.  Jill has told Jack that he could stay at the apartment any time that he wishes.  One evening, when Jill is not home, Jack visits her apartment. As he is rummaging through one of the bedroom drawers to find a pack of cigarettes that he had previously hidden there, John comes across a stack of cash that he then steals.  In this scenario, John is guilty of theft.  However, he is not guilty of burglary because he did not form the intent to steal Jill’s cash before entering her apartment.


Under PC 459, “entering” a structure means some part of the defendant’s body or an object in the defendant’s possession penetrates the area inside the building's “outer boundary.”  The following are examples of “entering” a structure:

  • Removing a screen from a house window
  • Sneaking one’s arm through an open window
  • Climbing over a fence into the backyard

First-degree burglary versus second-degree burglary

Burglary of a residence is first degree or “residential” burglary.  In contrast, burglary of a structure that is not a residence—such as a store or commercial building—is second degree or “commercial” burglary.

A “residence” in can be any of the following:

  • An inhabited house;
  • A room within an inhabited house;
  • An inhabited boat;
  • An inhabited floating home;
  • An inhabited trailer coach;
  • An inhabited portion of any other kind of building; or
  • An inhabited hotel or motel room.

“Inhabited” means that someone uses the structure as a home.  It does not mean that the person using the structure as a home must be present at the time of the burglary.  For example, because of a recent earthquake, Jack and his family leave their home and will not return until the home becomes seismically safe.  Jill breaks into Jack’s home and steals some items.  Although Jack had evacuated the home, Jill is still guilty of first-degree burglary.

Note also that any structure attached to the house and functionally connected to it is considered part of the house under California Burglary law.  In the example above, Jill breaks into Jack’s garage and steals some merchandise. This garage is attached to Jack’s living room.  In this scenario too Jill is guilty of first-degree burglary.  Now imagine that this garage was completely detached from Jack’s house and located a few blocks away from the house.  If Jill breaks into this garage and steals merchandise, she is guilty of second-degree commercial burglary because the garage is not attached to Jack’s house and therefore cannot be considered as functionally connected to or a part of the house.


Penalties for first-degree burglary:

First-degree burglary, or residential burglary, is a felony in California.  Punishment for first-degree burglary may include:

  • Two (2) years, four (4) years or six (6) years in California State Prison
  • Felony Probation and/or
  • A fine of up to ten thousand dollars ($10,000).

First-degree burglary is also a “strike” and punishable as such under California’s Three Strikes Law.

Penalties for Second-degree burglary:

Second-degree/commercial burglary under Penal Code 459 can be charged as either a felony or a misdemeanor, depending on the defendant’s criminal history and the specific circumstances of the offense.  Potential penalties for second-degree felony burglary are:

  • Sixteen (16) months, two (2) years or three (3) years in county jail;
  • Felony probation; and/or
  • A fine of up to ten thousand dollars ($10,000).

Potential penalties for second-degree/commercial misdemeanor burglary are:

  • Up to one (1) year in county jail;
  • Misdemeanor (summary) probation; and/or
  • A fine of up to one thousand dollars ($1,000).


Legal defenses to PC 459 California burglary include:

Lack of intent

If you did not intend to commit a theft or a felony at the time you entered the structure, you are not guilty of burglary.   Recall the example above where John stumbles upon a stack of cash after he rummages through one of Jill’s drawers to find a pack of cigarettes that he had previously hidden there.  John had no intention of stealing this stack of money when he entered Jill’s apartment.  John is therefore not guilty of burglary. 

Mistake of fact/Claim of right

If you thought that the property that you took belonged to you or that you had permission to take the property, then you did not have the requisite under Penal Code section 459.  For example, John and Jill break-up.  Prior to the break up, John had loaned Jill an expensive coffee maker.  Jill would repeatedly forget to return this coffee maker to John.  John still had keys to Jill’s apartment and, per the couple’s agreement, he could crash at Jill’s apartment when she was not home.  One evening, when Jill was out of town for work, John enters Jill’s apartment and retrieves his coffee maker.  In this scenario, John is not guilty of burglary.  He had permission to enter Jill’s apartment.  And he took property that belonged to him.

Factual innocence

Innocent people may be accused of crimes for many reasons. These include: 

  • False accusation
  • Mistaken identity i.e. if the defendant happens to look like the perpetrator
  • Misleading evidence

Police misconduct

Police misconduct can take many forms including: 

  • An illegal search in violation of the Fourth Amendment right against unreasonable searches;
  • "Planting" or "fabricating" evidence;
  • Asking leading questions of witnesses during a line-up;
  • Coercing a confession.

If any evidence used by the prosecution to support the burglary charge against you was obtained via the above illegal means, then your defense attorney can attempt to “suppress” or exclude that piece of evidence.


Actual Case:  In People v. E.J. (case number not disclosed per client’s request), Mr. J. and his friend entered an abandoned commercial burglary and allegedly took some tools inside.  Both Mr. J and his friend were charged with second-degree commercial burglary.  Negin thoroughly investigated the circumstances of the case by tracing Mr. J’s actions and movements prior to the alleged offense. Based on several witness testimonies, Negin discovered that Mr. J was told by his friend that the two of them could “hang out” and smoke marijuana in the structure, as it was an abandoned structure and as such afforded them privacy and the necessary isolation.  Once inside, Mr. J’s friend took some items and in fact these items were found in this friend’s possession only.  Negin successfully argued these facts to reduce the second-degree charge against Mr. J to a simple trespass.

Negin’s strategy:  In every case, Negin thoroughly investigates the circumstances prior to and after the alleged offense.  What occurred before and subsequent to an incident in question could reveal a defendant’s state of mind and thus gradations of culpability that might mean a reduction from burglary to trespass or first-degree burglary to second-degree burglary.  Negin will apply the same precision and thoroughness to your case. Cy contact our criminal attorney for a free consultation.