9 Things You Didn’t Know About Burglary Laws

*Penal Code Section 459*

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What is Burglary?

California Penal Code Section 459 — California’s law on burglary defines the offense as entering a room, structure, or locked vehicle with the intent to commit a felony (or a petty theft) therein.  Depending on the type of structure involved, burglary can be charged as a felony or a misdemeanor.  Because only auto burglary requires an actual break-in, you can be charged with burglary even if you did not forcibly enter a room or structure.


  • Entering a building with the intent of committing a felony assault
  • Entering a department store with the intent to steal jewelry
  • Breaking and entering into a locked car with the intent to steal items that you think may be valuable from the glove compartment

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Residential Burglary

Residential burglary is always charged as a felony under California penal code 459.  This type of burglary occurs in a structure where the victim lives rather than a commercial establishment.  Under the 3 strikes law in California, a conviction of residential burglary will result in a strike.  Having a strike on your record will result in severe consequences on any future felony convictions, including doubling the prison sentence.

Commercial Burglary

A commercial burglary is also charged under California Penal Code 459 PC, and can be a misdemeanor or a felony.  This occurs when an accused enters a store or business establishment with the purpose of committing a crime inside.  Often times commercial burglary is charged when a shoplifter is caught with tools in their possession that make it more likely that they planned the shoplifting before entering the store.  If a shoplifter is caught with an empty bag, which they brought with them, and placed items in the bag before exiting the store without paying, the prosecution will often allege commercial burglary as a misdemeanor.

How Does the Prosecutor Prove Burglary Under Penal Code Section 459?


To prove that you are guilty of “burglary,” the prosecutor has to prove the following facts or elements1:

  • The defendant entered a building, room within a building, or a locked vehicle2 AND


Pushing open broken wing lock on window, reaching one’s arm inside vehicle, and unlocking car door evidence of forced entry.

Opening an unlocked passenger door and lifting a trunk latch to gain access to the trunk is not an auto burglary.

  • When defendant entered, he/she intended to commit theft or a felony therein

How Can You Fight Burglary Charges?

The most common defenses that a skilled criminal defense attorney can use to defend you from “burglary” are as follows:

Mistaken Identity: You could easily become a victim of mistaken identity in a situation where the perpetrator’s face was not seen well if it was dark or if he/she was wearing a mask.  A criminal defense attorney will try to convince the court that you were not the perpetrator, especially in a situation where the incident took place at a poorly lit location or where the perpetrator’s identity was intentionally hidden.

Insufficient Evidence:  If there is insufficient evidence for a prosecutor to show that you in fact committed the burglary, you cannot be convicted of the crime.

Lack of intent: If you did not have intent to steal when you entered the structure, you cannot be charged with burglary, which requires that you enter a structure with such intent.

Ownership/Reclaiming What’s Rightfully Yours:  If the only reason you entered a structure – whether commercial or residential is because you wanted to take the things that belong to you, you are not guilty of burglary, because your intent was merely to reclaim what was once yours.

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Penalties, Punishment and Sentencing Guidelines

If you are convicted of “burglary” pursuant to California Penal Code Section 459, you face the following penalties:

First Degree Burglary (Residential)

If you committed burglary of a residential structure (i.e. house, apartment), you w ill be charged with a felony in California and it is considered a first degree burglary.  The penalties include a maximum sentence of 6 years in state prison; a maximum of $10,000 fine; and the conviction may county as a strike under California Three Strikes Law.

Second Degree Burglary

If you committed burglary of a commercial structure (i.e. business, office), it may be charged either as a felony or a misdemeanor, meaning it is a “wobbler” offense.  To determine whether to file if as a misdemeanor or felony, a prosecutor will usually look at your criminal record and the circumstances at hand.  The penalties for commercial burglary include a maximum of 1 year in county jail.  A felony charge may result in up to 3 years in state prison.

Sentencing Enhancements

Under California law, a burglary sentence can be enhanced under the following circumstances:

  • Prior Felony Convictions: Pursuant to California Penal Code 667.5, if you are convicted of felony burglary (residential or commercial) and a state prison sentence is imposed, you will receive an additional 1-year prison sentence for each of your prior felony convictions.
  • Violent Felonies:  A regular burglary offense turns into a “violent felony” if:
    • you are convicted of first degree residential burglary, and
    • someone was in the home/structure that you entered

If the burglary was a violent felony and you have prior violent felonies on your criminal record, you may receive an additional 3-year prison sentence for a prior conviction.

Related Offenses


There are two types of theft crimes both of which are referenced in Penal Code Section 459:  grand theft and petty theft.

Petty Theft

Petty theft pursuant to California Penal Code Section 484 and 488 entails the intentional taking away of property belonging to another when the value of the property is $950 or less; the property is not taken directly from the owner, such as from the person’s clothing, body, or container held or carried by, the person (such as in a case of mugging or robbery); and the property taken is not any of the following type of property (the taking of which constitutes grand theft)

  • Automobile
  • Firearm
  • Horse
  • Fruit/nuts worth more than $250
  • Fsh/shellfish/aquacultural products worth more than $250 when taken from a commercial fishery/research operation

Petty theft is charged as a misdemeanor offense.  First time offenders will usually face a maximum fine of $1,000 and/or up to 6 months in county jail.  However, most first-time petty theft offenders will receive probation with minimal or no jail time.

Grand Theft

Grand theft pursuant to California Penal Code Section 487, is theft involving stolen property worth more than $950; the property was taken from a person, no matter how much the property is worth (i.e. taken from the clothing of, on the body of, or in a container held or carried by a person, as in a mugging); the property stolen was an automobile or firearm; the property stolen was fruit/nuts/ worth more than $250; the property stolen was fish, shellfish, or aquacultural products worth more than $250 if taken from a commercial fishery or research operation.  In a majority of grand theft cases, the offense is a “wobbler,” meaning it can be charged either as a misdemeanor or a felony.  If charged as a misdemeanor, the maximum punishment is 1 year in county jail.  If charged as a felony, the maximum sentence if 3 years.


Pursuant to California Penal Code Section 211, a robbery is the taking of another’s property from his or her person or immediate presence, accomplished by force or fear.  There are some instances when you can be charged with both robbery and burglary, such as:

  • you entered a structure or other location belonging to someone else;
  • once inside you used force, intimidation, or fear to obtain property from another person on the premises; and
  • you intended to do so at the time of your entry.

Robbery is a felony punishable by 2-5 years in the California state prison.

How We Can Help

Regardless of the type of burglary charges you or a loved one is facing, it is necessary to hire the best Los Angeles burglary attorney to defend you.  The burglary attorneys at Aizman Law Firm have the knowledge, skill and experience necessary to fight your case and protect your rights.  We are committed to ensuring that your case gets the proper attention.  Our former prosecutors, experts, investigators and researchers will work to present the best defense for your case ensuring a successful outcome. Contact The Aizman Law Firm at 818-351-9555 for a free confidential consultation. ((We fight for clients in Los Angeles, Beverly Hills, Woodland Hills, Agourra Hills, Calabasas, Burbank, Torrance, San Bernardino, Sherman Oaks, Long Beach, Studio City, Santa Monica, Brentwood, Westwood, Encino, Van Nuys, Ventura, Riverside, and Orange County.))

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  1. California Penal Code Section 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. Under Penal Code section 459, forced entry of a locked vehicle constitutes burglary.  People v. Young K. (1996) 49 Cal.App.4th 861, 863 [57 Cal.Rptr.2d 12]. []