Penal Code 459 PC: Burglary in California

Penal Code 459 defines burglary as entering a home, store, other building or locked vehicle with the intent to steal or commit a felony inside. You don't have to break in or take anything; first degree (residential) burglary is a felony and a strike, and second degree burglary can be filed as a misdemeanor or a felony.

What PC 459 means

Burglary is about what you intended when you went in, not what happened afterward. Walking through an open door can be enough if the prosecutor says you planned the theft or felony when you entered, and you don't have to take anything. Entry is broad: reaching a hand, a foot or a tool inside the building's outer boundary can count.

Many cases turn on what you intended at the moment you entered, which is usually proved with circumstantial evidence such as what you carried, what you did inside and what you said.

To convict you, the prosecutor must prove (CALCRIM 1700):

1. You entered a building, a room within a building, a locked vehicle or another structure the law covers
2. When you entered, you intended to commit theft or a felony inside

First and second degree burglary

First degree, or residential, burglary (PC 460(a)) is burglary of an inhabited home, including an apartment, mobile home, houseboat or the lived-in part of another building. A home is inhabited if someone is living in it, even if no one was there at the time. Second degree burglary (PC 460(b)) is every other kind, such as a store, office, warehouse or locked car.

PC 459 penalties

• First degree burglary: two, four or six years in state prison, and probation is allowed only in unusual cases (PC 461(a), 462)
• Second degree burglary as a misdemeanor: up to 364 days in county jail (PC 461(b))
• Second degree burglary as a felony: 16 months, two or three years, usually served in county jail (PC 461(b), 1170(h))

Many second degree cases, especially first offenses, are resolved with probation. First degree burglary is a serious felony, so it counts as a strike (PC 1192.7(c)(18)), and if someone other than an accomplice was home at the time, and the prosecutor charges and proves it, it is also a violent felony (PC 667.5(c)(21)), which limits the credit for good behavior you can earn, both in county jail before sentencing (no more than 15% of the time served, PC 2933.1) and in state prison.

Shoplifting, car break-ins and burglary

Entering an open store intending to steal property worth $950 or less is shoplifting (PC 459.5), usually a misdemeanor, and it must be charged as shoplifting, not burglary. It can be charged as burglary if the value is over $950, the store was closed, or the prosecutor says you went in to commit a different felony. Under Proposition 36, passed in 2024, a new petty theft or shoplifting charge can be filed as a felony if you have two or more prior theft convictions, and prior burglary convictions count (PC 666.1).

Entering a car with intent to steal is burglary when the doors were locked. Since 2025, forcing your way into a vehicle, such as breaking a window, is also a separate crime (PC 465), without having to prove the doors were locked, but you can't be convicted of both for the same entry.

Common defenses to PC 459

It depends on the evidence. Common defenses include:

• You didn't intend to steal or commit a felony when you went in
• You had a right to enter, such as your own home
• Mistaken identity, such as unclear video or an unreliable witness
• The place was not inhabited, which makes it second degree, not first
• Evidence found in an illegal search, which can be thrown out

We review the police report, surveillance and body camera video, fingerprint and DNA results, phone location data and witness statements to find the weaknesses in the case.

Related charges

• PC 211 robbery
• PC 487 grand theft
• PC 484 theft, petty theft and shoplifting (PC 459.5)
• PC 465 unlawful entry of a vehicle
• PC 496 receiving stolen property
• Burglary (practice page)

PC 459 cases in Riverside and San Bernardino counties

Burglary cases are prosecuted by the District Attorney's Office in each county, and the judge may order you to stay away from the property or the people involved as a condition of release. In San Bernardino County, cases from Rancho Cucamonga, Ontario, Upland, Chino, Chino Hills, Montclair, Fontana and Rialto are heard at the West Valley courthouse in Rancho Cucamonga; cases from San Bernardino, Colton, Highland, Redlands, Loma Linda and Yucaipa at the San Bernardino Justice Center; and cases from Victorville, Hesperia and Apple Valley at the Victorville courthouse. In Riverside County, criminal cases are heard at five courthouses: the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Banning Justice Center, the Larson Justice Center in Indio and the Blythe courthouse.

Because Proposition 36 lets prosecutors count prior burglary and theft convictions toward felony theft charges (PC 666.1), how a burglary case is resolved now matters for any future case. Our office is in Riverside, and Yvonne Todd began her career as a Public Defender in San Bernardino.

Read the official text of PC 459 on the California Legislative Information site.

This page is general information about California law, not legal advice about your case. Reading it does not create an attorney-client relationship.