All You Need To Know About Burglary Laws

*Penal Code Section 459*

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.

Examples:
  • Entering a building1 with the intent of committing a felony assault
  • Entering a department store with the intent to steal jewelry
  • Breaking and entering into a locked car2 with the intent to steal3 items that you think may be valuable from the glove compartment
Residential Burglary
Man Breaking into a house

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.

Shoplifting Charged As Burglary

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 elements4:

  • The defendant entered a building5, room6 within a building, or a locked vehicle7
  • When defendant entered, he/she intended to commit theft8 or a felony therein
Examples:

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

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 yours9.

Penalties

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

First Degree Burglary

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.

PenaltyFirst Degree Burglary
FineMax of $10,000
State Prison2, 4, or 6 years
StrikeYes
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.

PenaltyMisdemeanorFelony
County Jail or State PrisonMax of 1 year county jail16 months, 2 years or 3 years 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.

Information On The Criminal Court Process

Next Steps

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Footnotes

  1. Under the law of burglary, a person enters a building if some part of his or her body [or some object under his or her control] penetrates the area inside the building’s outer boundary.], Source CALCRIM 1700 available at http://www.courts.ca.gov/partners/documents/calcrim_2017_edition.pdf []
  2. To lock, for purposes of auto burglary, is “to make fast by interlinking or interlacing of parts . . . [such that] some force [is] required to break the seal to permit entry . . . .” In re Lamont R. (1988) 200 Cal.App.3d 244, 247 [245 Cal.Rptr. 870], quoting People v. Massie (1966) 241 Cal.App.2d 812, 817 [51 Cal.Rptr. 18] [vehicle was not locked where chains were wrapped around the doors and hooked together]; compare People v. Malcolm (1975) 47 Cal.App.3d 217, 220–223 [120 Cal.Rptr. 667] [vehicle with locked doors but broken wing lock that prevented window from being locked, was for all intents and purposes a locked vehicle]. []
  3. Breaking into a locked car with the intent to steal the vehicle constitutes auto burglary. (People v. Teamer (1993) 20 Cal.App.4th 1454, 1457–1461 [25 Cal.Rptr.2d 296), []
  4. 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., avaialble at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=459 []
  5. A building has been defined for purposes of burglary as “any structure which has walls on all sides and is covered by a roof.” In re Amber S. (1995) 33 Cal.App.4th 185, 187 [39 Cal.Rptr.2d 672].) Courts have construed “building” broadly and found the following structures sufficient for purposes of burglary: a telephone booth, a popcorn stand on wheels, a powder magazine dug out of a hillside, a wire chicken coop, and a loading dock constructed of chain link fence. People v.Brooks (1982) 133 Cal.App.3d 200, 204–205 [183 Cal.Rptr. 773].) However, the definition of building is not without limits and courts have focused on “whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusions.” (In re Amber S. (1995) 33 Cal.App.4th 185, 187 [39 Cal.Rptr.2d 672] [open pole barn is not a building]; see People v. Knight (1988) 204 Cal.App.3d 1420, 1423–1424 [252 Cal.Rptr. 17][electric company’s “gang box,” a container large enough to hold people, is not a building; such property is protected by Penal Code sections governing theft]. []
  6. An area within a building or structure is considered a room if there is some designated boundary, such as a partition or counter, separating it from the rest of the building. It is not necessary for the walls or partition to touch the ceiling of the building. (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257–1258 [263 Cal.Rptr. 183] available at [office area set off by counters was a room for purposes of burglary].) Each unit within a structure may constitute a separate “room” for which a defendant can be convicted on separate counts of burglary. (People v. O’Keefe (1990) 222 Cal.App.3d 517, 521 [271 Cal.Rptr. 769] [individual dormitory rooms]; People v. Church (1989) 215 Cal.App.3d 1151, 1159 [264 Cal.Rptr. 49] [separate business offices in same building], source CALCRIM 1700 []
  7. 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]. []
  8. Any one of the different theories of theft will satisfy the larcenous intent required for burglary. (People v. Dingle (1985) 174 Cal.App.3d 21, 29–30 [219 Cal.Rptr. 707], available at [entry into building to use person’s telephone fraudulently]; People v. Nguyen (1995) 40 Cal.App.4th 28, 30–31 [46 Cal.Rptr.2d 840]. []
  9. You cannot burglarize your own property (People v. Gauze (1975) 15 Cal.3d 709, 714 [125 Cal.Rptr. 773, 542 P.2d 1365], []