California Penal Code §459 — Burglary
PC §459 defines burglary as entering a building, structure, or locked vehicle with the intent to commit theft or any felony inside. First-degree burglary (residential) is a strike felony carrying up to 6 years in state prison; second-degree burglary (commercial) is a wobbler with up to 3 years. The crime is complete the moment the defendant crosses the threshold with the required intent — no theft need occur.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney · Burglary Cases in All LA County Courts
On This Page
Jump to a Section
01 — Quick Facts
PC §459 — Burglary at a Glance
| Fact | Detail |
|---|---|
| Full Name | California Penal Code §459 — Burglary |
| Code Type | Penal Code (PC) |
| Classification | 1st Degree = Felony; 2nd Degree = Wobbler |
| 1st Degree (Residential) | 2, 4, or 6 years state prison |
| 2nd Degree (Commercial) | 16 months, 2, or 3 years, or up to 1 year jail |
| Auto Burglary | PC §459 — 2nd degree, wobbler |
| Shoplifting | Prop 47 — PC §459.5 misdemeanor if under $950 |
| Strike | 1st degree = strike (PC §1192.7(c)(18)); 2nd degree = no |
| Probation | Discretionary — depends on degree and priors |
| Expungeable | Yes if probation granted (PC §1203.4) |
| Immigration | Aggravated felony for residential; CIMT for commercial |
| Related Codes | PC §459.5 (Shoplifting), §460, §461, §211 (Robbery) |
| If Charged | Call (213) 723-2337 for a free consultation |
01 — What Is PC §459?
What Is California Penal Code §459?
PC §459 Reads:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, any house car, inhabited camper, vehicle when the doors are locked, aircraft, or mine with intent to commit grand or petit larceny or any felony is guilty of burglary."
— California Penal Code §459
California burglary is not the common-law 'breaking and entering.' Under PC §459, no breaking is required — even an open-door entry through an unlocked front door is burglary if the defendant crossed the threshold with the intent to commit theft or a felony inside. The crime is complete on entry; the theft or felony need not be completed.
First-Degree vs. Second-Degree Burglary
PC §460 divides burglary into two degrees. First degree is burglary of an inhabited dwelling (a place currently used as a residence, even if unoccupied at the moment). Every other burglary is second degree — commercial buildings, storage units, locked vehicles, garages not attached to a residence.
First-Degree — Residential
Entry of an inhabited dwelling — house, apartment, hotel room, or trailer. Strike felony. 2, 4, or 6 years state prison. Not probation-eligible with certain priors.
Second-Degree — Commercial or Vehicle
Entry of any other building or a locked vehicle. Wobbler — misdemeanor (up to 1 year) or felony (16 months, 2, or 3 years). Not a strike.
Why This Law Matters
Residential burglary is a strike offense that doubles all future felony sentences and triggers deportation for non-citizens. Auto burglary can be shielded from felony treatment when the vehicle wasn't locked. And shoplifting-style entries with intent to steal under $950 are now misdemeanor 'shoplifting' under PC §459.5 (Prop 47). Determining which theory applies is often the single most impactful defense strategy.
Official Sources
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §459
To convict a defendant of burglary under PC §459, the prosecution must prove each of the following elements beyond a reasonable doubt.
You Entered a Building, Locked Vehicle, or Enumerated Structure
Entry occurs when any part of the defendant's body — or any instrument in the defendant's hand — crosses the outer boundary of the structure. Reaching a hand through an open window is enough. For auto burglary, the vehicle must be locked at the time of entry.
You Had the Intent to Commit Theft or Any Felony at the Time of Entry
The specific intent must exist at the moment of entry — not formed afterward. This is the most contested element in most burglary cases. If the defendant formed the intent to steal only after entering, the crime is theft, not burglary.
The Structure or Vehicle Was Not Yours to Enter
You cannot burglarize your own home or a place where you had unconditional permission to enter. A limited-purpose entry (e.g. a store employee entering to steal) can still be burglary because the entry exceeds the scope of permission.
03 — Degrees
PC §459 — Tiers & Degrees
PC §460 grades burglary into two degrees with dramatically different consequences.
First-Degree Burglary (Residential)
Entry into an inhabited dwelling — house, apartment, hotel room, RV, or floating home. 'Inhabited' means currently used as a dwelling, even if no one is home at the moment. Serious felony and strike.
- Strike offense (PC §1192.7(c)(18))
- Not probation-eligible if defendant used a deadly weapon or inflicted GBI
- Aggravated felony for immigration
Second-Degree Burglary (Commercial / Vehicle)
Any burglary that is not first-degree — commercial buildings, storage units, detached garages, locked vehicles. Wobbler with substantial misdemeanor exposure.
- Not a strike
- Can be reduced under PC §17(b)
- Auto burglary requires the vehicle to be locked
Shoplifting (PC §459.5 — Prop 47)
Entry of an open commercial establishment during business hours with intent to steal property valued at $950 or less. Reclassified from felony burglary to misdemeanor shoplifting by Proposition 47.
- Misdemeanor only
- Not a strike
- Diversion frequently available
04 — Penalties
Penalties for PC §459 Burglary in California
Burglary penalties depend on the degree, the structure entered, and any weapon or injury allegations.
| Charge | Code | Prison Term | Probation | Strike |
|---|---|---|---|---|
| 1st Degree Burglary | PC §459/460(a) | 2, 4, or 6 years state prison | Discretionary | Yes |
| 2nd Degree Burglary (Felony) | PC §459/460(b) | 16 mo, 2, or 3 years | Yes | No |
| 2nd Degree Burglary (Misd.) | PC §459/460(b) | Up to 1 year county jail | Yes | No |
| Auto Burglary | PC §459 (2nd deg.) | 16 mo, 2, or 3 yrs or misdemeanor | Yes | No |
| Shoplifting (Prop 47) | PC §459.5 | Up to 6 months jail | Yes — diversion common | No |
Enhancements That Increase Burglary Exposure
Person Present During Residential Burglary
PC §667.5(c)(21)
If someone other than an accomplice is present in the residence during first-degree burglary, the offense is a violent felony — limits credits to 15% and increases parole exposure.
Firearm Use
PC §12022 / §12022.5
Personal use of a firearm during burglary adds 3, 4, or 10 years consecutive.
Prior Strike
PC §667(e)
Doubles the base term; a third strike triggers 25-to-life.
Great Bodily Injury
PC §12022.7
+3 to 6 years for GBI inflicted during the burglary.
Gang Enhancement
PC §186.22(b)
Adds 2 to 10 years for gang-related burglaries.
Vulnerable Victim
PC §667.9
Enhancement when the victim was blind, deaf, developmentally disabled, or over 65 — adds 1 to 2 years.
Beyond the Sentence
- Strike consequence (1st degree) — doubles all future felony sentences
- Restitution to the victim for stolen property and damage
- Loss of firearm rights (PC §29800)
- Aggravated felony status for immigration on 1st degree convictions
- Ineligibility for many professional licenses
- Public housing eligibility loss
- 10-year lookback for future burglary priors under PC §666
Sentencing References
05 — Defense Strategies
How Rubin Law Defends PC §459 Burglary Charges
Rubin Law, P.C. attacks burglary cases at the intent element and on the classification of the structure. Every reduction — from 1st to 2nd degree, from felony to misdemeanor, from burglary to trespass — matters.
No Intent to Commit Theft or Felony at Entry
Intent must exist at the moment of entry. If the defendant entered for a lawful purpose and later decided to steal, the crime is theft — not burglary. Statements, timing, and pre-entry conduct are critical to this defense.
CALCRIM 1700 / People v. Montoya
Consent / Permission to Enter
You cannot burglarize a place you had permission to enter. If you had express or implied consent from someone with authority to grant it — a friend, roommate, or resident — the burglary charge fails.
People v. Salemme (1992)
Auto Burglary — Vehicle Was Not Locked
Auto burglary requires the vehicle to be locked at the time of entry. If any door was unlocked, the People cannot make out the entry element and the charge should be dismissed or reduced to petty theft.
PC §459 — auto burglary element
Reclassification as Shoplifting (Prop 47)
If the entry was into an open commercial establishment during business hours with intent to steal $950 or less, the offense is misdemeanor shoplifting (PC §459.5), not burglary. This is the most common Prop 47 reduction and often converts a wobbler felony into a misdemeanor.
Mistaken Identification
Many residential burglaries rest on brief, stressful observations or fingerprint/DNA hits. We investigate the identification protocol and challenge with expert eyewitness testimony where appropriate.
CALCRIM 315
Suppression of Evidence
Stolen property, fingerprints, or digital evidence obtained through unlawful searches or defective warrants can be suppressed under PC §1538.5 — often gutting the People's case.
PC §1538.5
Voluntary Intoxication Negates Specific Intent
Burglary is a specific-intent crime. Voluntary intoxication — while not a defense to general-intent crimes — can negate the specific intent to commit theft or felony, reducing burglary to trespass or theft.
PC §29.4 / CALCRIM 3426
Constitutional Sources
07 — Court Process
How PC §459 Burglary Cases Move Through Los Angeles Courts
Felony burglary cases in LA County follow the standard felony wobbler / strike timeline.
- 1
Step 1 — Arrest & Booking
Residential burglary bail typically starts at $50,000; 2nd-degree burglary at $20,000. We seek bail reduction under PC §1275 at arraignment.
- 2
Step 2 — Arraignment
Charges are read and plea entered. For 2nd-degree burglary, we file an immediate PC §17(b) reduction request when facts support misdemeanor treatment.
- 3
Step 3 — Preliminary Hearing
The People must prove probable cause. This is where we challenge the entry element, the intent element, and the classification of the structure — creating the record for later Prop 47 motions.
- 4
Step 4 — Pre-Trial Motions
PC §1538.5 (suppression), Prop 47 reclassification motions, PC §17(b) reduction motions, and motions to strike prior strikes under Romero.
- 5
Step 5 — Plea Negotiations
Most burglary cases resolve to lesser charges — trespass, misdemeanor shoplifting, or reduced-degree burglary. We negotiate from strength after motion practice.
- 6
Step 6 — Trial or Sentencing
If trial is necessary, we challenge intent and identification. Post-conviction, we advocate for probation, split sentencing (PC §1170(h)), or the low term with credits.
Los Angeles Courts That Handle PC §459 Burglary Cases
Felony burglary cases are prosecuted at LA County's felony courthouses based on offense location.
Clara Shortridge Foltz Criminal Justice Center
Downtown LA felony courthouse.
Van Nuys Courthouse
San Fernando Valley residential burglary caseload.
Compton Courthouse
Compton, Watts, and South LA burglary cases.
Pomona Courthouse
Eastern LA County — Pomona, West Covina.
Long Beach Courthouse
Long Beach and South Bay felonies.
Reviewed by Your Attorney
Daniel S. Rubin — Los Angeles Burglary Defense Attorney
Daniel S. Rubin has defended clients charged with burglary and related offenses in Los Angeles County courts — including Clara Shortridge Foltz, Van Nuys, Compton, and Pomona. He understands that these cases are won in the details: the suppression hearing that eliminates key evidence, the preliminary hearing cross-examination that exposes a weak witness, the penalty phase argument that keeps a client out of the worst outcome.
This page was written and reviewed by Daniel A. Rubin, Los Angeles criminal defense attorney, CA State Bar 302093, with 10+ years of experience defending clients charged under PC §459 in Los Angeles County. Last reviewed: July 2026.
CA Bar 302093 | Whittier Law School | Rising Star — Super Lawyers 2019–2023 | Burglary Cases Throughout LA County
09 — FAQs
PC §459 Burglary Questions — Los Angeles
Do I have to actually steal anything to be convicted of burglary?
No. Burglary under PC §459 is complete the moment you enter with intent to commit theft or a felony — even if you never take anything. The crime is the entry with the required intent, not the completed theft. This is why prosecutors frequently charge burglary alongside attempted theft.
Is residential burglary a strike in California?
Yes. First-degree burglary (burglary of an inhabited dwelling) is listed as a serious felony under PC §1192.7(c)(18) and counts as a strike. Second-degree burglary (commercial or vehicle) is not a strike.
What is 'inhabited' under PC §460?
'Inhabited' means the dwelling is currently used as a residence — a place where someone regularly sleeps and keeps belongings — even if unoccupied at the moment of the burglary. A vacation home is inhabited if the owner uses it periodically; an abandoned or foreclosed home is not.
Can I be charged with burglary for shoplifting?
Since Prop 47 (2014), entry into an open commercial establishment during business hours with intent to steal $950 or less is misdemeanor 'shoplifting' under PC §459.5 — not burglary. Prosecutors sometimes still file it as burglary; we file Prop 47 motions to reclassify to §459.5 misdemeanor.
What is auto burglary?
Auto burglary is a second-degree burglary charge under PC §459 for entering a locked vehicle with intent to steal or commit any felony. The vehicle must be locked at the time of entry — an unlocked car can support theft charges but not burglary. Auto burglary is a wobbler with up to 3 years prison exposure.
Can burglary be reduced from felony to misdemeanor?
Yes — but only 2nd-degree burglary. Under PC §17(b), a 2nd-degree wobbler can be reduced to a misdemeanor at preliminary hearing, sentencing, or after successful probation. 1st-degree residential burglary is a straight felony and not eligible for §17(b) reduction — though it can be reduced through Prop 47 in some circumstances.
Can I be charged with burglary of my own home?
Generally no — you cannot burglarize a place where you had unconditional right to enter. But if a restraining order, protective order, or lease termination has revoked your right of entry, entering the residence with intent to commit a felony can support a burglary charge.
What is the difference between burglary and robbery?
Burglary is entering a structure with intent to steal or commit felony — the crime is against the property. Robbery (PC §211) is taking property directly from a person by force or fear — the crime is against the person. Robbery does not require entry into any structure. When both elements combine (entering a home and confronting the occupant), prosecutors typically charge both.
Available 24/7 — Free Consultation
Charged With Burglary in Los Angeles?
First-degree burglary is a strike offense with lifelong consequences. Call Rubin Law, P.C. today for a free consultation.