THEFT & PROPERTY LAW — CALIFORNIA
Burglary Laws in California — PC §459 First and Second Degree
Burglary in California is entering a structure with intent to commit a crime inside. First degree (residential) burglary is always a felony and a strike. Second degree (commercial) is a wobbler.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney
Quick Reference
Burglary California — At a Glance
- Law / Code
- PC §459
- Classification
- First Degree: Felony / Second Degree: Wobbler
- Maximum Penalty
- 2–6 years prison (first degree) / 16 months–3 years (second degree felony)
- Probation Eligible
- Second degree only — first degree requires prison
- Strike Offense
- Yes — first degree residential burglary
What Is Burglary California Under California Law?
Legal Framework. California Penal Code §459 defines burglary as entering any structure, vehicle, or locked container with the intent to commit theft or any felony inside. The critical element is intent at the time of entry — not whether the theft was completed. A person who enters a store with the intent to shoplift has committed second degree burglary under California law even if they leave without taking anything.
The Prosecution's Burden. California has two degrees of burglary. First degree burglary (PC §460(a)) is burglary of an inhabited dwelling — a house, apartment, hotel room, or any structure where someone lives. First degree burglary is always a felony, always a strike, and carries 2, 4, or 6 years in state prison. It cannot be reduced to a misdemeanor. Second degree burglary (PC §460(b)) is burglary of any other structure — a store, office, warehouse, or vehicle. Second degree burglary is a wobbler.
Potential Consequences. Auto burglary — entering a locked vehicle with intent to commit theft — is a form of second degree burglary under PC §459. With Proposition 47's passage, entering an unlocked vehicle to steal property worth $950 or less was reclassified as petty theft rather than burglary. Entering a locked vehicle remains burglary regardless of the value of property inside.
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §459
To convict under PC §459, the prosecution must prove each of the following elements beyond a reasonable doubt:
The defendant entered a structure, room within a structure, locked vehicle, or locked container
At the time of entry the defendant intended to commit theft or a felony inside
For first degree burglary: the structure was an inhabited dwelling where people live
All elements must be proven beyond a reasonable doubt.
Penalties
Penalties for Burglary California in California
Misdemeanor
Second degree burglary (wobbler treated as misdemeanor): up to 1 year county jail.
Felony
First degree (residential): 2, 4, or 6 years state prison — strike offense, no probation except in unusual cases. Second degree (commercial): 16 months, 2, or 3 years prison or county jail.
Additional Consequences
- First degree burglary strike doubles future felony sentences
- No probation for first degree without unusual circumstances finding
- Restitution mandatory
- Immigration — crime of moral turpitude
- Enhanced sentence if victim is elderly (PC §667.9)
05 — Defense Strategies
How Rubin Law Defends Burglary California Charges
Rubin Law, P.C. attacks the elements of PC §459 and drives outcomes that avoid conviction where possible.
Challenge Intent at Time of Entry
Burglary requires criminal intent at the moment of entry — not formed afterward. If the defendant entered lawfully and only later formed the intent to steal, the burglary charge fails. We challenge the prosecution's evidence of intent — particularly in commercial burglary cases where the defendant may have entered a public business for a legitimate purpose.
U.S. Const. amend. IV
First vs Second Degree Challenge
Reducing a charge from first degree (residential, always a strike) to second degree (commercial, wobbler) is one of the most important distinctions in burglary defense. We argue for second degree classification when the structure was not actually inhabited at the time of entry or does not qualify as a dwelling.
17 CCR §1219.3
Negotiate Misdemeanor Treatment
Second degree commercial burglary as a wobbler can be charged as a misdemeanor. We present mitigation and argue for misdemeanor treatment to avoid a felony conviction.
NHTSA SFST
Challenge Entry Element
Burglary requires actual entry into the structure. Attempted entry, reaching through an open window, or standing at a threshold may not constitute entry under PC §459. We challenge the entry element when facts support it.
VC §23152
Mistaken Identity
Many burglary arrests are based on witness identification, surveillance footage, or circumstantial evidence connecting a defendant to the scene. We challenge identification evidence comprehensively.
17 CCR §1219.1
Suppress Evidence
Burglary investigations often involve warrantless searches of homes, vehicles, and persons. We scrutinize every search for Fourth Amendment violations and move to suppress evidence obtained unlawfully.
VC §23103.5
Constitutional Sources: Fourth Amendment — U.S. Constitution
Questions
Frequently Asked — Burglary California
What is the difference between first and second degree burglary in California?
First degree burglary under PC §460(a) is burglary of an inhabited dwelling — any structure where people live including houses, apartments, and hotel rooms. It is always a felony, always a strike, and carries 2 to 6 years in state prison. Second degree burglary under PC §460(b) is burglary of any other structure — stores, offices, warehouses, and vehicles. Second degree burglary is a wobbler that can be charged as a misdemeanor or felony.
Is shoplifting considered burglary in California?
Under California law entering a commercial establishment with the intent to shoplift is technically second degree commercial burglary under PC §459. However Proposition 47 created a specific shoplifting statute — PC §459.5 — for entering an open business during regular hours with intent to steal property worth $950 or less. PC §459.5 shoplifting is a misdemeanor. Shoplifting property worth more than $950 can still be charged as burglary or grand theft.
Can burglary be charged even if nothing was stolen?
Yes. Burglary is complete at the moment of entry with criminal intent — even if the defendant was interrupted, found nothing worth taking, or voluntarily left without stealing anything. The completed theft is not an element of PC §459. This is why the prosecution focuses on proving intent at the time of entry rather than on the value of property taken.
Is residential burglary always a strike in California?
Yes. First degree residential burglary under PC §460(a) is a serious felony and a strike under California's Three Strikes law. A strike conviction doubles the sentence for any subsequent felony conviction and requires 80% time served. A second strike doubles the sentence. A third strike can result in a mandatory 25-to-life sentence under certain circumstances.
What is auto burglary in California?
Auto burglary — entering a locked vehicle with intent to commit theft or a felony inside — is a form of second degree burglary under PC §459. It is a wobbler carrying up to 3 years as a felony. With Proposition 47 entering an unlocked vehicle to steal property worth $950 or less was reduced to petty theft. Entering a locked vehicle remains burglary regardless of the value of property inside.
Can I get probation for burglary in California?
For second degree commercial burglary probation is often available, especially for first-time offenders. For first degree residential burglary probation is technically available but the court must make an unusual circumstances finding — in practice most residential burglary defendants without extraordinary mitigation serve prison time. An experienced attorney can present the strongest possible case for probation when probation eligibility exists.
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