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Burglary

California Burglary Laws - Penal Code 459

California Penal Code Section 459 defines the serious theft crime offense of burglary. Burglary is traditionally thought of as entering an occupied dwelling place without permission with the intent to commit a serious crime inside.

However, Penal Code Section 459 modifies and broadens this common law definition of burglary to encompass substantially more conduct than what is thought of by the average person who uses the term burglary.

This article examines the two degrees of burglary – first and second-degree burglary – as well as the related offense of shoplifting as defined in Penal Code Section 459.5.

First-Degree v. Second-Degree Burglary

California burglary comes in two degrees – first and second. First-degree burglary is the more serious of the two.

It is defined by Penal Code Section 459 as entering a building, a room within a building, or a locked vehicle or structure which the intent to commit a crime therein and that the defendant either stole or intended to steal $950 or more in property, entered a non-commercial structure, or entered a commercial structure outside of normal business hours.

In a first-degree burglary, the structure at issue must be a “residence.” Residences include structures which are not traditional homes such as houses or apartments.

Residences also include houseboats, RVs, or any inhabited portion of a building even if it also has a commercial use, such as a shopkeeper who lives in a room within a store. The same conduct which qualifies as first-degree burglary qualifies as second-degree burglary if the building or structure or room within a structure is anything other than a residence.

Intent to Commit Theft or Felony

Notice that one of the elements of burglary is the contemporaneous intent to commit either a theft or a felony within the structure at issue. The timing of the formation of intent is often a disputed issue in burglary prosecutions.

If the defendant entered the structure without the intent to commit a theft or a felony and only formed such criminal intent once inside, they are likely guilty of other crimes, but not of burglary.

On the other hand, even if the defendant fails to actually steal anything of value or commit a felony once inside, they are still guilty of burglary if the prosecution can prove that the defendant entered with the contemporaneous intent to commit a theft or a felony.

These two examples illustrate how burglary centers around why the defendant entered a particular structure rather than what actually happened once the entry was accomplished.

This is not to say that the defendant cannot be charged with additional violations if he or she actually accomplishes a crime once inside of the structure, but these violations would not add or detract from the prosecution’s case for burglary.

Shoplifting - Penal Code 459.5

In cases where the defendant enters a commercial establishment during business hours with the intent of committing a theft under $950, i.e. a store which is open to the public, they are guilty of the lesser crime of shoplifting under Penal Code Section 459.5.

Shoplifting was added to the Penal Code as part of a voter initiative in California. Voters were concerned that minor shoplifting violations with loss amounts significantly under $950 could technically be prosecuted as felony second-degree burglary. Under the new law, shoplifting is a misdemeanor offense only.

Penalties for Penal Code 459 Burglary

The penalties associated with a burglary conviction depend upon the degree of burglary, or shoplifting, which the defendant is convicted of.

First-degree burglary, often known as residential burglary, is always a felony under California law and is punishable by two, four, or six years in the state prison.

Second-degree burglary, on the other hand, is a “wobbler” under California law, meaning it can be prosecuted as either a felony or a misdemeanor and in the case of a felony conviction may be able to be reduced to a misdemeanor post-conviction.

If second-degree burglary is brought as a felony, the possible punishments include 16 months, two years, or three years in the state prison.

In the case of a misdemeanor conviction for second-degree burglary, the maximum penalty is one year in the county jail. Shoplifting is also punishable by county jail time as a misdemeanor, but interestingly felony penalties can attach if the defendant has prior convictions for burglary or for a number of enumerated sex-related offenses.

Los Angeles Burglary Defense Lawyer

If you, or someone you know, is under investigation for, has been charged with, or is pending trial for the serious California crime of burglary in either the first or second degrees, or for shoplifting under Penal Code Section 459.5, contact our team of experienced Los Angeles criminal defense attorneys for an initial consultation.

We have a track record of success in defending clients against ant type of theft related offense. We will review the details of your case in order to determine a strategy for best possible outcome.

Eisner Gorin LLP is a top-rated criminal law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office adjacent to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our firm for a case evaluation at (877) 781-1570.



Eisner Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses.

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