California Burglary Charges - Penal Code §459 Definitions, Penalties, & Defenses

California Burglary Charges (PC §459) — Definitions, Penalties, & Defenses

If you or a loved one has been arrested for burglary in California, you're facing a serious property crime with potentially life-altering consequences. California law splits burglary into first-degree (residential) and second-degree (non-residential/commercial) offenses, and recent changes in charging practices after Proposition 47 make it critical to understand when conduct is burglary versus shoplifting (PC §459.5).

As a Bay Area criminal defense lawyer, our firm defends burglary, shoplifting, theft, and related charges across San Francisco, Oakland, San Jose, Alameda County, Contra Costa County, Santa Clara County, and surrounding courts. We also defend related property crimes such as robbery. If your case also involves DUI or probation issues, our team includes a California DUI lawyer who can coordinate your defense and protect your driving and immigration status as needed.

What Is Burglary in California? (Penal Code §459)

Burglary is entering a listed structure (for example, a building, room, locked vehicle, or other statutory location) with the intent to commit theft or any felony inside. No "breaking" is required—walking through an unlocked door with the required intent can satisfy the law. California's official jury instruction (CALCRIM 1700) confirms the elements and the rule that any entry—even a tool or body part crossing the outer boundary—can be enough if paired with criminal intent at the time of entry.

Key takeaways:

• Intent must exist at entry. If the intent formed after you were already inside, that does not meet burglary's timing requirement. (See CALCRIM 1700.)
• Entry into a locked vehicle may qualify as burglary under PC §459 (commonly called "auto burglary").

Degrees of Burglary & Penalties (PC §§460-461)

First-Degree (Residential) Burglary — PC §460(a)

First-degree burglary covers entry into an inhabited dwelling (a place currently used as a residence, whether or not someone is home at the moment). It is always a felony. Punishment is 2, 4, or 6 years in state prison, plus fines (typically up to $10,000), restitution, and collateral consequences.

Additional consequences:

• Strike offense: Residential burglary is a "serious felony." If a person other than an accomplice is present in the residence during the burglary, it is a violent felony under the Three Strikes scheme (PC §667.5(c)(21)), increasing future sentencing exposure.
• Probation limits: Courts generally may not grant probation in first-degree burglary except in unusual cases in the interests of justice (PC §462(a)).

Second-Degree (Non-Residential / Commercial) Burglary — PC §460(b)

All other burglary (e.g., most commercial structures, rooms within buildings, or locked vehicles) is second-degree. It's a wobbler—prosecutors may file it as a misdemeanor (up to 1 year in county jail) or a felony (up to 3 years in custody under PC §1170(h)). Fines and restitution can also be imposed.

When Is It Shoplifting (Not Burglary)? — PC §459.5 (Prop 47)

Under PC §459.5, entering a commercial establishment during regular business hours with intent to steal $950 or less is shoplifting, which is charged as a misdemeanor in most cases. Prosecutors must charge eligible conduct as shoplifting rather than felony burglary. Exceptions apply for certain disqualifying priors or where the conduct falls outside business hours or involves intent to commit a non-larceny felony.

Related & Accompanying Charges

• Theft (Grand/Petty): Depending on value and facts, prosecutors may add or substitute grand theft (PC §487) or petty theft (PC §484).
• Trespass (PC §602 / §601): If evidence of "intent at entry" is weak, police sometimes book trespass instead/too. (The Legislature has continued to adjust trespass provisions; charging specifics depend on the subsection alleged.)
• Possession of Burglary Tools (PC §466): Possessing tools like lock picks, crowbars, screwdrivers, slide hammers, bump keys, etc., with intent to use them unlawfully is a misdemeanor.
• Great Bodily Injury Enhancement (PC §12022.7): If someone suffers great bodily injury during the commission/attempt of a felony, the court can add 3-6 years consecutive to the underlying sentence.

Sentencing Enhancements, Strikes, and Collateral Consequences

• "Strike" Effects: A first-degree residential burglary conviction is a strike; if a person was present (non-accomplice), it is a violent felony. Future felonies can be doubled and a third strike can trigger 25-to-life exposure.
• Prior violent-felony prison terms: Additional time may apply for certain prior violent felonies (PC §667.5).
• Immigration, licensing, and firearms: Felony convictions—and some misdemeanors—can cause immigration consequences for non-citizens, professional license issues, firearm prohibitions, and travel/employment obstacles.

Procedure: What Happens After a Burglary Arrest?

1. Arrest & booking; release/bail (or cite-and-release in some misdemeanor cases).
2. Arraignment: You enter a plea; the court addresses custody status and protective orders.
3. Negotiations & pretrial motions: We challenge probable cause, the intent element, identification, and evidence (search/seizure issues).
4. Preliminary hearing (felonies), then possible motion practice and trial.
5. Sentencing: If convicted, we argue mitigation, local-time eligibility (for §1170(h) cases), alternatives (treatment, community labor), and credit calculations.

As a Bay Area burglary defense attorney, we also coordinate with our DUI defense team when cases overlap (e.g., DUI stop leading to a search and seizure dispute), ensuring a unified strategy with a California DUI lawyer where helpful.

Defenses We Commonly Use in California Burglary Cases

• No intent at entry: The State must prove intent when you entered. Post-entry decisions don't satisfy PC §459. (CALCRIM 1700.)
• Consent/authority to enter: Documented consent or implied authority can defeat the "unlawful entry" theory. (See CALCRIM and case-law applications.)
• Mistaken identity / unreliable eyewitness evidence (lighting, distance, stress, cross-racial ID issues).
• Shoplifting vs. burglary mischarge: If entry occurred during business hours and the amount was ≤$950, we move to reduce to PC §459.5 shoplifting (misdemeanor) when legally appropriate.
• Suppression of evidence: Fourth Amendment challenges to stops, searches, seizures, or custodial statements can exclude critical evidence.
• Alibi / lack of entry evidence: "Entry" can be contested; even minimal crossing of the threshold must be proven beyond a reasonable doubt. (CALCRIM 1700.)

Statute of Limitations (How Long Can They File?)

• Misdemeanor shoplifting/trespass: generally 1 year (PC §802).
• Felony burglary: generally 3 years (PC §801), subject to tolling rules and specific exceptions not typically applicable to burglary.

Local Help for the Bay Area

Whether you searched "burglary lawyer near me," "San Jose burglary attorney," "Oakland criminal defense lawyer," or even "California commercial driver DUI penalties" (because you're juggling criminal and DMV issues), our team is set up for fast, local action—including same-day jail and court visits, evidence preservation, and bail guidance.

From pre-filing intervention to trial, we move quickly to secure surveillance, phone data, witness statements, and to press for charge reductions (e.g., to PC §459.5 shoplifting or trespass) where supported. If your case also includes DUI or commercial driver (CDL) issues, ask about coordinating with our truck driver DUI attorney in the Bay Area so your criminal and DMV strategies align.

Call us now at (800) 379-9330 or fill out our online contact form for a confidential, free consultation. The earlier a Bay Area burglary defense attorney is involved, the more options we have.