How does California law define Burglary? The legal details of PC 459 and PC 460.

How does California law define Burglary? The legal details of PC 459 and PC 460.

Quick Summary: Burglary is a major California criminal offense. Under California laws, there are multiple different laws around burglary, theft, trespassing, etc. This leaves misconceptions as to what “burglary” actually is.

Table of Contents:

Welcome to EZ Record Clean’s California Law course. We designed this course to clear up any confusion around the California Legal System. In each article, we dive deep into each Penal Code, explaining all legal details in a clear, retainable way. 

In today’s article, I will be explaining the laws around California Burglary. I dive into Penal Codes 459 and 460. I explain all details, penalties, and legal defenses around these laws. Let’s get started. 

what is burglary

How does California law define Burglary?

California Law defines burglary as entering any commercial or residential structure with the intent to commit a crime. This crime could include grand theft, petty theft, or any felony.

Penalties for burglary are divided into two categories: first degree and second degree. The “degree” of your criminal offense is determined by the type of structure you entered. 

For instance, if you entered a residential building, like a home, that is a first-degree offense. A second degree offense would be if you entered a commercial building. 

There is a lot that goes into what burglary actually is. Depending on certain circumstances, you likely didn’t commit burglary at all. Read the next section to understand all the details around California burglary law. 

The details of Penal Codes 459 and 460

Penal Code 459 is California’s first law around burglary (there are many). This law states that burglary is entering any structure with the intent to commit  “grand or petit larceny1 or any felony.” To get a better understanding of this and other details, let’s first go over some legal terms.

  • Residential Structure – an inhabited house, boat, floating home, trailer coach, hotel, motel, or any other inhabited building
  • Commercial Structure – any building that isn’t a dwelling
  • Inhabited – means that someone is currently using that structure as a dwelling. This does not mean the resident has to be in the home at the time of the burglary.

You can see the full definition of burglary below. 

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.

There are a few elements to a burglary that we should break down. If any one of the elements isn’t true, it wasn’t burglary.

First, you must have entered a structure. California defines “entering” as any body part or object under your control going within the building’s outer boundary. This could include a screen door or a second-story balcony.

Next, it must have been a structure. There are two types of structures you would have entered. Depending on the type, you could be convicted of first or second-degree burglary. (details on the differences in the next section)

The first type is a residential property. This is defined as any property that is currently inhabited by residents. Keep in mind that this doesn’t mean the residents have to be home during the offense. For instance, if you entered someone’s home while they were out for dinner, that was still first-degree burglary.

The second type of property is commercial. California defines a commercial building as any business or uninhabited structure. Another important key to commercial properties is the timing of the offense. If you entered the building after hours, it was burglary, but if you entered during normal operating hours, it was not.

The last half of the law states you must have had intent to commit grand theft, petty theft, or a felony. If you had no illegal intent, you cannot be convicted of burglary.

It is also important to note the timing of intent. The law says you must have entered the building with the intent to commit a crime. If you formed the intent after entering the building, this is a completely separate crime.

punishments for california burglary convictions

Punishments for violating Penal Code 459

As stated in the last section, burglary can be divided into two: first-degree and second-degree. As Penal Code 460 defines below:

(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.

c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.

First Degree Burglary

First-degree, also known as residential burglary, is any burglary of a residence. This also includes any structure attached to or functionally connected with the house. For instance, if you break into a garage, that is considered first-degree burglary.

First-degree offenses are much more serious than second degree. If you are convicted of first-degree burglary under PC 459, you will be charged with a felony. This faces you up to 6 years in state prison along with a fine of up to $10,000. This also counts as a “strike” under California’s Three Strike Law.

Second Degree Burglary

Second-degree is referred to as commercial burglary. This takes place in pretty much any building that isn’t inhabited. Second-degree burglaries are considered wobbler offenses. This means the prosecutor can choose to charge you as a misdemeanor or a felony.

A felony under second-degree burglary has the potential to carry a 3-year sentence in county jail. This also can come with formal probation and a fine of up to $10,000.

A misdemeanor wobbler offense will only be 1 year in county jail. This can also come with informal probation and up to a $1,000 fine.

Sentencing Enhancements

Sentencing enhancements increase the penalties of a conviction. Under PC 459, there are sentencing enhancements for violent felonies and prior felony convictions.

Most burglaries are normal felonies. However, if someone was in the structure, it turns into a violent felony. This could get you an additional 3-year sentence.

If you are being convicted of burglary and have been charged with a felony before, you likely face sentencing enhancements. Under PC 667.5, you could receive an additional 1-year sentence for each prior conviction.

Juvenile Penalties

Unlike the criminal justice system, juvenile courts have much broader sentencing options. Possible juvenile burglary penalties include fines, restitution, counseling, probation, and detention.

In the case of restitution, you will be required to pay for damages to the victims of the crime. The court can also order you to maintain employment to pay for these costs.

how to defend against pc 459 convictions

How to defend against PC 459 convictions

If you are being convicted of burglary, there are objections you can argue to reduce penalties or prove your innocence. It is wise to hire a criminal defense attorney to handle your case. They will help you secure minimal-to-no legal punishment.

Possible legal defenses under PC 459 and PC 460 include:

Lack of Intent

Lack of intent means that you didn’t intend to commit a crime upon entering the building. Remember, if you didn’t enter the building with criminal intent, it wasn’t burglary. Timing of intent is crucial.

Arguing this in court might help reduce your penalties.

Mistake of Fact (Claim of Right)

Mistake of fact, also known as a claim of right, is a legal defense to PC 459. This is similar to the lack of criminal intent. If you entered another’s home to take back something you thought was yours, or you thought you had permission to take, it was not burglary. This is not considered criminal intent. 

Factual Innocence

Factual innocence is showing that you didn’t commit the crime. This is the best way to prevent any conviction, but you must be innocent. It isn’t uncommon for innocent people to be wrongfully convicted of burglary. This may happen due to mistaken identity, misleading evidence, or false accusations.

Regardless of why, if you are innocent, contact an attorney. They will help prove your innocence and prevent criminal charges.

Police Misconduct

Sometimes police become overeager to solve a case. This can compel them to do things that violate your rights. They might have fabricated evidence, violated Fourth Amendment Rights, or coerced your confession.

If you suspect police misconduct, it is a good idea to file a Pitches Motion to the officer. This allows you to see whether others have filed similar complaints about that officer in the past. If the officer has engaged in a pattern of police misconduct, the judge will likely dismiss all charges.

What is the difference between burglary and shoplifting?

Burglary is not the same as shoplifting. Penal Code 459.5 Shoplifting is a subset law of burglary. It defines shoplifting as entering a store or business with the intent to steal less than $950 of goods. This is only applicable to commercial properties and not residential buildings.

The timing of the entering is also important. If you entered the building with criminal intent after normal business hours, it was still burglary. However, if you entered the building to steal a $600 TV, it was shoplifting. It must be under $950! If the TV was $951, it was burglary no matter when you stole it.

The separate laws for shoplifting were created by voter initiative under Proposition 47 in 2014. This reduces penalties for several minor crimes in California. If convicted of PC 459.5, you only face misdemeanor penalties.

There are a few exceptions to this. If previously convicted of rape, murder, or sex crimes against children, you face felony penalties under second-degree burglary.

If you were convicted of burglary before Prop 47 was established, you might be able to reduce those convictions. You can likely resentence a prior conviction from felony burglary to shoplifting. To do this, contact an attorney who can help.

Is burglary the same as breaking and entering?

Burglary is not the same as breaking and entering. California burglary laws do not require you to “break” into the property. You simply have to enter the property with criminal intent.

On the other hand, breaking and entering is entering a property with force.

Examples of Burglary

Many people confuse burglary with theft, trespassing, looting, breaking and entering, or shoplifting laws. Although burglary might be similar, the specific intrications of this are different. 

Examples of burglary include:

  • Breaking into a house while the owners aren’t home to steal jewelry
  • Entering a woman’s apartment with the intent to rape her
  • Entering a bank with the intent to commit check fraud once inside
  • Entering an open electronics store to steal a $1,000 TV
related burglary crimes

Related crimes that can be charged in addition to PC 459

If you are guilty of burglary, you might have broken other laws as well. Below are related crimes that might be charged as well. 

Possession of Burglary Tools – PC 466

Penal Code 466 Possessing of Burglary Tools makes it illegal to possess tools with the intent to use them to commit a felony under PC 459. These tools could include a crowbar, slim jims, screwdriver, or pliers.

If you were arrested while committing burglary and were carrying tools, you may be charged with both PC 459 and PC 466. This can bring a misdemeanor charge with potential jail time for up to 6 months.

*This law also makes it a crime to make or alter a key without the consent of the person who controls the property that the key opens.

Forgery – PC 470

Under PC 470, Forgery is knowingly creating, altering, or using written documents with the intent to defraud. Most people think of burglary as breaking into someone’s home at night. However, if you entered a bank with the intent to commit forgery, you could be charged under PC 470 and PC 459. 

Robbery – PC 211

Most people think robbery and burglary are the same thing. However, they are a bit different. Robbery is defined as taking another’s property from his or her immediate presence.

Another important detail of robbery is that it involves violence or threats. Whereas burglary can be intending to commit a crime without force or fear. Robbery is always a felony, which could result in up to 5 years in state prison.

Trespass – PC 602

Trespassing is defined as entering another’s property without the right to do so. It might seem that any time you commit PC 459, you commit a trespass. However, this isn’t always the case.

Trespassing focuses on whether the other person consented to your presence on their property. Keep in mind, you can commit burglary in an open business. This would not be considered trespassing but would be burglary.

If you entered someone’s home with criminal intent without their knowing, you committed both. If you face a PC 459 conviction, and prosecutors have weak evidence of criminal intent, you might be able to renegotiate a reduction of charges.

PC 602 is much less serious and usually results in a misdemeanor or even an infraction.

*This can also be filed as a felony for "aggravated trespass" under PC 601 if you entered the property within 30 days of making a threat against the property owner's or resident's safety.

Burglary of Safe or Vault with Explosives – PC 464

Penal Code 464 states:

Any person who, with intent to commit crime, enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of acetylene torch or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or by use of nitroglycerine, dynamite, gunpowder, or any other explosive, is guilty of a felony and, upon conviction, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for a term of three, five, or seven years.

If you used explosives to open a safe, vault, or another secure place during a PC 459 violation, you could be charged with PC 464 as well. This is more serious than PC 459 and results in a felony regardless of the type of property.

A PC 464 conviction can come with up to 7 years in state prison with enhanced penalties.

record expungement for burglary convictions

Record Expungement for burglary charges

If you have been convicted of burglary, it is time to contact an expungement attorney. Our attorneys at EZ Record Clean can help you reduce felonies and completely remove convictions from your criminal record. This prevents the possibility of landlords or employers from seeing it on your record.

We understand that mistakes happen. We also understand that people are wrongly accused of crimes all the time. If this is the case for you, we can help. Give us a call today or fill out our online contact form to get started.


  1. Larceny – theft of another person’s property
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