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Defending Burglary Charges in California

Posted by Dmitry Gorin | Jun 14, 2021

Review of Penal Code 459 PC Burglary Charges and Defenses

California Penal Code 459 PC describes burglary as the act entering a residential or commercial structure, with intent to commit grand or petty larceny, or any other felony crime.

Burglary Charges and Defenses in California - Penal Code 459 PC
Burglary is described as entering a structure with intent to commit a grand or petty theft, or any felony.

It's worth noting that entry into the structure only has to be done with the intent of committing a felony offense.

Put simply, the crime of burglary is completed the moment someone enters a structure with criminal intent, even if they never actually stole anything.

PC 459 burglary laws divide this crime into either a first-degree or second-degree burglary.

A first-degree burglary is entering a residence, while a second-degree burglary includes all other structures, such as a business. 

Burglary is California “wobbler” crime that can be filed by the prosecutor as either a misdemeanor or felony, but first-degree burglary is always a felony crime punishable by up to six years in a state prison.

Penal Code 459 PC says:

  • “Anyone who enters a house, apartment, shop, warehouse, store, barn, stable, tent, vessel…, or other building with intent to commit grand or petty larceny, or other felony crimes, is guilty of the crime of burglary.”

Further, Penal Code 459.5 defines the crime of shoplifting which occurs when someone enters an open business with specific intent to steal merchandise ($950 or less).

For more information, our Los Angeles criminal defense attorneys are providing a review below.

What is a PC 459 First-Degree Burglary?

First-degree burglary is normally a residential burglary involving the entry into an inhabited dwelling that is designed for habitation.

It does not mean the people who live there must be home at the time of the burglary. The term “inhabited” simply means that people use the structure as a dwelling place.

A “residence” under the definition of a Penal Code 459 burglary includes a:

  • home,
  • room within a home,
  • apartments,
  • guest house,
  • boat or floating home,
  • hotel or motel room,
  • recreational vehicles.

Keep in mind that Penal Code Section 459 PC is defined as entering a non-commercial structure which the intent to commit a crime therein, and the defendant either stole or intended to steal, $950 or more in property.

Put simply, in a first-degree burglary case, the structure has to be considered a “residence,” such as the traditional houses or apartments.

Penalties for first-degree burglary 

If you are convicted of the felony crime of PC 459 first-degree burglary, then you are facing the following penalties:

  • two, four, or six years in a California state prison,
  • a fine up to $10,000,
  • formal probation,
  • a “strike” under California's three strikes law.

In most cases, the judge will not grant probation only in a first-degree burglary conviction.

In other words, a conviction will typically include a state prison sentence followed by a period of supervised parole unless there are mitigating circumstances that would justify a lesser sentence.

What is a PC 459 Second-Degree Burglary?

Second-degree includes all other types of burglaries outside of any structure that would be considered under the umbrella of residential.

This most commonly includes “commercial burglary” of a store, business, or other type of structure that is closed during normal business hours.

What is a PC 459 Second-Degree Burglary?
A conviction for a felony second-degree commercial burglary is punishable by up to 3 years in jail.

If the business was open during normal hours, then Penal Code 459.5 shoplifting charges could be filed, which was created under the 2014 Proposition 47 that reduced penalties for many minor crimes.

Penalties for second-degree burglary 

PC 459 Second-degree burglary can be charged at the prosecutor's discretion as either a misdemeanor or a felony (wobbler).

If convicted of a misdemeanor second-degree commercial burglary, the penalties include the following:

  • up to one year in a county jail,
  • a fine up to $1,000,
  • summary probation.

If convicted of a felony second-degree commercial burglary, the penalties include the following:

  • 16 months, 2 years, or three years in a California state prison,
  • a fine up to $10,000,
  • formal probation.

What is the Intent to Commit a Theft or Felony?

Recall from the Penal Code 459 definition the crucial element of burglary is the “intent” to commit either a theft or a felony within the structure. 

The actual timing of the formation of intent is sometimes a debatable issue by an experienced criminal lawyer in PC 459 burglary prosecutions.

For example, if a defendant initially entered the structure with no actual intent to commit a theft or a felony, but formed criminal intent after getting inside, then they could be guilty of another related crime, but not PC 459 burglary.

Even in a situation where the defendant never actually steals anything or commits a felony after getting inside the structure, they could still be found guilty of burglary if the prosecutor is able to prove they entered the structure with intent to steal something, or to commit a felony, once inside.

If you enter a structure with intent to commit a felony and armed with a dangerous weapon and other people are present in the home, then you could be facing the more serious charges of first-degree home invasion.

As you can see, the crime of burglary in California will often primarily focus on why a defendant entered a particular structure rather than what really happened after they got inside.

What are the Related Crimes for Burglary?

  • Penal Code 459.5 – shoplifting,
  • Penal Code 466 PC – possession of burglary tools,
  • Penal Code 487 – grand theft,
  • Penal Code 484 PC – petty theft,
  • Penal Code 211 PC – robbery,
  • Penal Code 602 PC – trespassing.

How Can I Fight Burglary Charges?

If you are accused of violating California's PC 459 burglary laws, the prosecutor has the burden to prove your guilt beyond any reasonable doubt.

Our team of experienced criminal defense attorneys can use a wide range of common strategies to fight the charges.

How Can I Fight California Burglary Charges?
Contact our law firm for an initial consultation.

We might be able to argue you did not intend to commit a theft or felony once inside the structure as the timing of intent is critical as discussed above.

Other common defenses against burglary charges include insufficient evidence, mistaken identity, misconduct by police, and a reasonable belief you had consent to enter the structure.

If you are under investigation or already arrested and charged with the crime of burglary in California, contact our criminal law firm for an initial consultation.

We might be able to negotiate with the prosecutor for lesser charges, or even get the case dismissed. Further, there might be a chance to avoid the formal filing of charges through prefiling intervention.

Eisner Gorin LLP has two office locations in Los Angeles County. Contact us at (877) 781-1570 to review the details of your burglary case.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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