California Burglary Laws

Penal Code 459 PC Explained

California Penal Code 459 defines burglary, one of the most serious theft-related offenses under California law.

While burglary is often thought of as breaking into an occupied home, California's burglary statute is far broader than the common understanding of the term.

Under Penal Code 459, burglary can occur even without forced entry, and even if nothing is ultimately stolen, so long as prosecutors can prove the required criminal intent at the time of entry.

This page explains first-degree burglary, second-degree burglary, and shoplifting, along with the penalties and defenses associated with each.

Your best hope for a favorable outcome is with a highly experienced criminal defense attorney at Eisner Gorin LLP. To schedule a consultation, call (818) 781-1570 or contact us here.

What Is Burglary Under Penal Code 459?

Penal Code 459 defines burglary as entering a structure, room, or locked vehicle with the intent to commit theft or any felony inside.

Key points:

No breaking or force is required
Permission to enter may still result in burglary
The crime focuses on intent at the moment of entry, not what ultimately happens

A person can be guilty of burglary even if no property is taken and no felony is committed.

First-Degree vs. Second-Degree Burglary in California

California recognizes two degrees of burglary, with first-degree burglary being the more serious offense.

First-Degree Burglary (Residential Burglary)

First-degree burglary occurs when the defendant enters a residence with the intent to commit theft or a felony.

A residence includes:

Houses and apartments
Condominiums and townhomes
Houseboats and RVs
Any inhabited portion of a building, even if the building also has a commercial use

Because residential burglary poses a heightened risk to occupants, it is treated as an especially serious offense.

First-degree burglary is always a felony.

Second-Degree Burglary (Commercial or Non-Residential)

Second-degree burglary applies when the structure entered is anything other than a residence, such as:

Stores
Offices
Warehouses
Schools
Commercial buildings

The same conduct that qualifies as first-degree burglary becomes second-degree burglary when the location is non-residential.

Second-degree burglary is classified as a “wobbler”, meaning it can be charged as either a misdemeanor or a felony depending on the facts and the defendant's record.

Intent to Commit Theft or a Felony

A crucial element of burglary is intent.

To convict someone of burglary, the prosecution must prove:

The defendant intended to commit theft or a felony at the time of entry

This timing matters:

If intent formed after entering, the defendant may be guilty of another crime, but not burglary
If intent existed before or during entry, burglary can be charged—even if nothing is stolen

Burglary prosecutions often focus heavily on circumstantial evidence to infer intent.

Shoplifting – Penal Code 459.5

California voters enacted Penal Code 459.5 to address low-level theft cases.

A person commits shoplifting when they:

Enter a commercial establishment
During normal business hours
With the intent to steal property valued at $950 or less

Shoplifting is a misdemeanor, not burglary, and was created to prevent minor thefts from being prosecuted as felony second-degree burglary.

However, felony penalties may still apply if the defendant has certain prior convictions, including specified burglary or sex offense priors.

Penalties for Burglary and Shoplifting in California

First-Degree Burglary

Always a felony
Punishable by 2, 4, or 6 years in California state prison

Second-Degree Burglary

Felony: 16 months, 2 years, or 3 years in state prison
Misdemeanor: Up to 1 year in county jail

Shoplifting (PC 459.5)

Misdemeanor
Punishable by county jail time and fines
Felony penalties possible for repeat offenders

Los Angeles Burglary Defense Lawyer

Burglary charges carry severe penalties and long-term consequences, including potential prison time, strike implications, and a permanent criminal record.

If you are under investigation for or charged with:

First-degree burglary
Second-degree burglary
Shoplifting under Penal Code 459.5

you should speak with an experienced burglary defense attorney immediately.

Eisner Gorin LLP represents clients throughout Los Angeles County in serious theft and burglary cases.

Our attorneys analyze the evidence, challenge intent, and explore all possible defenses—including filing Penal Code 17(b) motions to reduce felony charges to misdemeanors when appropriate.

Our offices are located in Los Angeles. To schedule a consultation, call (818) 781-1570 or contact us here.

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