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California Burglary Defense Lawyers

California Penal Code § [Section] 459 – Burglary

A burglary charge in California should never be taken lightly. If you have been accused of burglary, you are facing severe consequences including jail or prison time, hefty fines, and a tainted reputation. If you have been arrested for burglary, please do not plead guilty without understanding the law and the options you have. At the Kann California Defense Group, our legal team understands the laws surrounding burglary and have years of experience and success in defending those facing such criminal charges. Contact an experienced defense lawyer who will advise you as to your legal rights and options.

California Burglary Laws

Under California Penal Code Section 459, burglary is the act of entering a structure (residential, commercial, or any other type of property) with the intent to commit grand larceny, petit larceny, or any other felony. It is important to understand that entry into any structure does not have to be accomplished by force, through threat of violence, or through any act of destruction, it only has to be done with the intention of committing a felony or any crime that can be charged as a felony. The act of burglary is considered a wobbler under California law, meaning that depending on the circumstances of the crime, it can be charged as either a felony or misdemeanor.

First Degree vs. Second Degree Burglary

California Penal Code Section 460 categorizes burglary into first degree burglary, which is a felony, and second degree burglary, which may be charged as a misdemeanor or a felony.

What is First Degree Burglary?

First degree burglary is usually residential burglary as it involves entering an "inhabited" dwelling that is designed for habitation. Even if the dwelling is not occupied, it will be considered "inhabited" if it is meant for dwelling purposes. If convicted of this felony crime, the defendant can be sentenced to two, four, or six years in state prison. Probation will not be granted to those convicted of first degree burglary unless it is in the best interest of justice. In other words, if one is convicted of first degree burglary, they will be sentenced to prison followed by a period of parole unless mitigating circumstances exist which would warrant a less severe sentence of up to one year in county jail followed by formal felony probation. It should be noted that first degree burglary falls under California's Three Strikes Law. Under California law, if a person is convicted of two felony strike charges and is then convicted of any subsequent felony charge, they may face a prison sentence of 25 years to life. Please see our article on the Three Strikes Law page for more information on this particular topic.

What is Second Degree Burglary?

Second degree burglary refers to all other instances of the crime, including commercial burglary and the burglary of any structure other than a residence or a dwelling. Second degree burglary can be charged as a misdemeanor or a felony. If charged as a misdemeanor, the punishment can result in imprisonment in county jail for a maximum of one year. If charged as a felony, second degree burglary is punishable by up to 16 months, 2 years, or three years in state prison.

Various Types of Burglary Crimes

The charges a person faces for a burglary offense are often dependent on the circumstances of the cases. Often, actions committed within the course of the burglary will increase the potential penalties if convicted. In other words the prison sentence normally given for burglary could be substantially lengthened either due to the fact that the defendant has suffered prior convictions for burglary or other serious crimes or the facts of the case warrant additional charges such as robbery or battery.

If a person causes "great bodily injury" to another during a burglary, or if the victim is present, a defendant could face additional charges such as battery defined under California Penal Code Section 242 as the use of force or violence upon another or robbery defined under California Penal Code Section 211 as taking personal property from a victim from his or her immediate presence by use of force or fear. Under these circumstances, the defendant may face much more serious consequences than they would if they had simply burgled a building in which no one was present. Please see our articles on this website for more information on the topics of burglary or robbery.

Safe Cracking

If the person enters a building and opens or attempts to open a vault, safe, or other secure place by the use of a steel-burning device, such as an acetylene torch, this is a felony and subject to an increased prison sentence of three, five, or seven years under Penal Code Section 464.

Commercial Burglary and Petty Theft

Commercial burglary; i.e., burglary of a building used for commercial purposes such as a store or other business, may be charged as a misdemeanor, but can be charged as a felony if the prior criminal history of the defendant shows prior burglary or shoplifting offenses. Commercial burglary which is often charged under California Penal Code Section 459 is usually filed in shoplifting cases. Oftentimes when one is charged with violating Penal Code Section 459 for a shoplifting offense, the charge can be reduced to the much less serious charge of petty theft by way of a plea negotiation. Petty theft is defined under California Penal Code Section 484(a). Petty theft can be charged as a misdemeanor or a felony. Petty theft is a felony if the value of the items taken is $950 or more. It is a misdemeanor if the value of the property is $950 or less. Typically in a shoplifting case, if a charge is reduced from burglary to petty theft, the charge will be that of a misdemeanor as long as the defendant has no prior theft convictions. However, if the defendant has a prior conviction of petty theft on their record they can be charged with felony petty theft under Penal Code Section 666, i.e., petty theft with a prior. If the value of the property taken is $50 or less, the charge can be reduced to an infraction under California Penal Code section 490.1(a). Infractions are the lowest form of criminal acts. When convicted of an infraction, a person will face no jail time, no probation, and may only be liable for payment of a fine.

Possession of Burglary Tools

Possession of burglary tools is a misdemeanor under California Penal Code 466 and can be added to other burglary related charges. This charge is punishable by up to 180 days in county jail.

Criminal Prosecution and Defense of Burglary Cases in California

In order to obtain a conviction in a burglary case, the prosecution must prove:

1. Entry

That the defendant entered the building or structure and;

2. Intent

that he or she had the "intent" to steal or commit another felony within the structure.

1. Entry: Entry is the easier element for a prosecutor to prove in a burglary case. It does not take much for an action to constitute entry. No "breaking" is necessary for an entry to have occurred. Placing one's hand or any other body part or any type of handheld tool such as a flashlight through an open window or door is enough to constitute the element of entry.

2. Intent: Intent is the key when it comes to proving a burglary case. Depending on the facts and circumstances of the case, it can be very difficult for a prosecutor to prove the "intent" element of a burglary charge. If a person walks into a store or other type of building and steals an item, there is no way to prove what that person had in mind prior to entering the store without some type of direct evidence. As discussed earlier, in order for the act to constitute burglary, the person must have formed the intent to steal prior to entering the store or type of building. If the person enters a store and decides to steal an item or items after entering the store, a theft crime may have been committed but not burglary.

One way that a prosecutor can try to prove intent is if the defendant had items on him or her that are considered "burglary tools" (crowbars, slim jims, pliers, blow torches, etc.)

Without hard evidence such as the possession of burglary tools or the fact that it was late at night or the defendant was wearing dark clothing, prosecutors will often have to try to rely on the actions of defendants that are shown through video footage, photographs, or witness testimony. While actions such as forced entry or physical aggression toward another party can be used as evidence, many burglary charges do not involve such actions. This is why burglary charges are often very hard for a prosecutor to prove in court.

Effectively challenging the intent element when fighting a burglary case is key to the defense' strategy and may lead to reduced charges, a dismissal, or an acquittal at jury trial.

3. Felony: With regard to the intended crime element of a burglary charge, aside from theft charges, the prosecutor can try to show that a defendant intended to commit any other type of crime that could be charged as a felony even if it is chargeable as a misdemeanor, i.e., "wobbler" type charges. In other words, any straight felony charge or "wobbler" type of charge can be sufficient to constitute the "other felony" requirement of Penal Code Section 459. The intended crime does not have to be a theft related crime.


Defenses to burglary include mistaken identity, i.e., it was somebody else, consent by the owner of the property to take it, mistaken belief that you were actually returning property, lack of entry to the structure, and of course, lack of intent.

Dedicated Burglary Criminal Defense

Burglary charges are serious allegations that can be devastating to a defendant's personal and professional life if he or she is convicted. If you or a loved one is facing burglary charges in Southern California, please contact us here at the Kann California Defense Group to obtain more information about burglary laws and your legal rights and options. Our experienced team of attorneys and investigators understand the legal and personal ramifications of a burglary conviction and will fight hard for your rights and to ensure that your charges are dismissed or reduced. Contact us today at 888-744-7730 or fill out our contact form to find out how we can help.

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