Is Burglary a Felony in California? Penal Code 459 Explained
The short answer: burglary of a home is always a felony in California, and burglary of anything else is a wobbler that the prosecutor can file as a felony or a misdemeanor. Under Penal Code section 459, burglary is entering a building, a room, a locked vehicle, or certain other structures with the intent to commit theft or any felony inside. The crime is complete the moment you enter with that intent, even if nothing is taken. First degree burglary of an inhabited dwelling carries two, four, or six years in state prison and counts as a strike. Second degree burglary can be a misdemeanor or a felony, and since Proposition 47 many store entries that used to be charged as burglary must now be charged as shoplifting instead.
Why the charge is more serious than people expect. Burglary is not "breaking and entering," and it does not require force, a weapon, a nighttime entry, or a stolen item. People in Riverside, Moreno Valley, Fontana, Long Beach, and Santa Ana are charged with burglary for walking through an open door, reaching into an unlocked garage, or entering a friend's apartment during an argument. Because a residential burglary conviction is a strike under California's Three Strikes law and can trigger a mandatory prison sentence, understanding each element the prosecutor must prove is the first step in defending the case at the Riverside Hall of Justice, the San Bernardino Justice Center, or the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
What the Prosecutor Must Prove for Burglary Under Penal Code 459
Two elements, both beyond a reasonable doubt. Under Penal Code section 459 and the pattern instruction CALCRIM 1700, the prosecutor must prove (1) that you entered a building, a room within a building, a locked vehicle, or another structure listed in the statute, and (2) that when you entered, you intended to commit theft or any felony inside. That is the whole crime. There is no requirement that you broke in, that you succeeded, or that you took anything. For first degree burglary, the prosecutor must also prove the structure was an inhabited dwelling under Penal Code section 460.
What counts as an entry. Entry means any part of the body, or an instrument used to accomplish the theft or felony, crossing the outer boundary of the structure. Reaching an arm through an open window is an entry. In Magness v. Superior Court (2012) 54 Cal.4th 270, the California Supreme Court held that using a remote control to open a garage door from the driveway, without any part of the body or a tool crossing into the garage, was not an entry and could support only attempted burglary. In People v. Sparks (2002) 28 Cal.4th 71, the court held that entering a bedroom inside a house with felonious intent is burglary even if the person was invited into the house itself. The word "room" in the statute does real work.
What counts as a building or structure. The statute lists houses, rooms, apartments, shops, warehouses, stores, mills, barns, stables, outhouses, tents, vessels, floating homes, railroad cars, locked or sealed cargo containers, trailer coaches, inhabited campers, aircraft, mines, and vehicles when the doors are locked. Auto burglary requires a locked vehicle; entering an unlocked car with intent to steal is theft or attempted theft, not burglary. An "inhabited" dwelling under Penal Code section 459 is one currently used for dwelling purposes, whether or not anyone is home at the time.
Intent at the moment of entry. This is the element that wins and loses most burglary trials. The prosecutor must prove that the intent to steal or commit a felony existed when you crossed the threshold. Intent formed after entry is not burglary; it may be theft, vandalism, or assault, but not Penal Code section 459. Because nobody announces their intent, prosecutors prove it by circumstance: time of night, tools, gloves, a broken lock, flight, the property found on the person, or statements made to police. Every one of those circumstances can be explained, and the defense case usually lives in that explanation.
First Degree Versus Second Degree Burglary
First degree burglary is residential. Under Penal Code section 460, subdivision (a), burglary of an inhabited dwelling house, an inhabited vessel, an inhabited floating home, an inhabited trailer coach, or the inhabited portion of any other building is first degree burglary. Under Penal Code section 461, the sentence is two, four, or six years in state prison. First degree burglary is a serious felony under Penal Code section 1192.7, subdivision (c), which makes it a strike, and it becomes a violent felony under Penal Code section 667.5, subdivision (c), when another person, other than an accomplice, was present in the residence during the burglary. Under Penal Code section 462, probation is not available for first degree burglary of an inhabited dwelling except in unusual cases where the interests of justice would best be served.
Second degree burglary is everything else. Burglary of a store, an office, a warehouse, a detached garage, a locked car, or a commercial building is second degree burglary. It is a wobbler. As a felony, it carries sixteen months, two years, or three years, generally served in county jail under Penal Code section 1170, subdivision (h). As a misdemeanor, it carries up to one year in county jail. Whether the district attorney files it as a felony or a misdemeanor depends on the loss amount, the criminal history, and the facts, and a felony filing can later be reduced to a misdemeanor under Penal Code section 17, subdivision (b).
Shoplifting is not burglary anymore. Proposition 47 added Penal Code section 459.5, which defines shoplifting as entering a commercial establishment during regular business hours with intent to commit larceny of property worth $950 or less. Shoplifting is a misdemeanor for most people, and the statute says that conduct meeting the definition of shoplifting must be charged as shoplifting and cannot be charged as burglary or theft of the same property. Prosecutors in Riverside County and Los Angeles County still file second degree burglary when the entry was after hours, when the intended theft exceeded $950, or when the intended crime was a non-theft felony such as identity theft or forgery. Our guide on what happens if you get caught shoplifting covers the misdemeanor side.
Related Charges Prosecutors File With Burglary
Possession of burglary tools. Penal Code section 466 makes it a misdemeanor to possess a listed tool such as a slim jim, picklock, crowbar, or screwdriver with intent to break into a building or vehicle. This charge is often filed alongside auto burglary and sometimes stands alone when the prosecutor cannot prove an entry.
Theft, receiving stolen property, and vandalism. A burglary case usually includes a companion count for the completed crime: grand theft under Penal Code section 487, petty theft under Penal Code section 488, receiving stolen property under Penal Code section 496, or vandalism under Penal Code section 594 for a broken window or door. These counts matter for plea negotiations because a resolution to the companion count with a dismissal of the burglary avoids the strike.
Robbery and home invasion. If force or fear is used to take property from a person, the charge becomes robbery under Penal Code section 211, and a robbery inside an inhabited dwelling is first degree robbery. Those cases are charged and prosecuted very differently, and the preliminary hearing is often where the defense pushes a robbery or first degree burglary down to a lesser charge.
Common Defenses to Burglary Charges
No intent at the time of entry. The most important defense is that the intent to steal or commit a felony did not exist when you entered. A person who walks into an open garage looking for a friend and then, on impulse, picks up a tool is guilty of theft, not burglary. A person who enters an ex-partner's apartment to talk and then gets into an argument has not committed burglary unless the prosecutor can prove the felony intent existed at the door. Text messages, the timing of the entry, and the absence of tools or a plan are all evidence on this element.
Consent and the right to enter. In People v. Gauze (1975) 15 Cal.3d 709, the California Supreme Court held that a person cannot burglarize his own home because burglary protects the possessory right of the occupant. A person with an unconditional right to enter the premises is not a burglar even if he intends to commit a crime inside. Roommates, co-tenants, and people on the lease raise this defense regularly, but be careful: courts have distinguished Gauze when the person's right to enter was conditional or had been revoked, such as after a restraining order or a lockout, and entering a specific room a person has no right to enter can still be burglary under Sparks.
No entry. Under Magness, standing in a driveway and opening a garage door is not an entry. Attempted burglary carries half the punishment. Cases built on surveillance video often show a person at a door or window but never show a hand or tool crossing the threshold, and the defense should insist on that proof.
Mistaken identity and insufficient evidence. Residential burglaries are frequently solved by a partial license plate, a neighbor's description, or a fingerprint on an exterior surface. A fingerprint on the outside of a window proves someone touched the window, not that they entered with felonious intent. Our guide on what makes a criminal case weak explains how these cases fall apart.
Voluntary intoxication. Burglary is a specific intent crime. Under Penal Code section 29.4, evidence of voluntary intoxication is admissible on whether the defendant actually formed the required specific intent. Intoxication is not a complete defense, and it will not help on the companion theft count in most cases, but it can defeat the burglary element that carries the strike.
Illegal search. Many burglary arrests come from a traffic stop or a search of a car, a backpack, or a phone. If the search violated the Fourth Amendment, a motion under Penal Code section 1538.5 can suppress the stolen property and the tools. Read our guides on 1538.5 motions and car searches in California.
Statements to police. Burglary suspects often talk themselves into the intent element. Telling an officer "I was just looking for something to sell" supplies the one fact the prosecutor could not otherwise prove. Our guide on what not to say to police explains why silence is the safer choice.
Penalties and Collateral Consequences of a Burglary Conviction
Sentencing ranges. First degree burglary: two, four, or six years in state prison under Penal Code section 461, with probation generally unavailable under Penal Code section 462. Second degree felony burglary: sixteen months, two years, or three years under Penal Code section 1170, subdivision (h). Second degree misdemeanor burglary: up to one year in county jail. Restitution to the victim is ordered in every case under Penal Code section 1202.4.
Strike consequences. A first degree burglary conviction is a strike. A later felony conviction with one prior strike doubles the sentence, and a person with two prior strikes faces the Three Strikes law's harshest terms. A first degree burglary conviction also adds a five-year enhancement to any later serious felony under Penal Code section 667, subdivision (a).
Firearms and immigration. Any felony conviction triggers a lifetime firearm ban under Penal Code section 29800. For non-citizens, burglary with intent to commit theft has been treated as a crime involving moral turpitude, and a burglary conviction with a sentence of one year or more may be charged as an aggravated felony depending on how the federal courts read the statute of conviction. Defense counsel must advise on immigration consequences under Penal Code section 1016.3, and the plea should be structured with those consequences in mind.
Licenses, employment, and family court. A burglary conviction is a theft-related offense that professional licensing boards, security guard registrations, and many employers treat as disqualifying. A felony record can also be raised in a custody case. A misdemeanor or reduced conviction can later be dismissed under Penal Code section 1203.4 using form CR-180, as explained in our expungement guide.
How Burglary Cases Move Through Southern California Courts
Charging decisions. The district attorney reviews the police report and decides whether to file first degree, second degree felony, second degree misdemeanor, or a lesser theft count. In Riverside County, cases from Riverside, Moreno Valley, and Corona are heard at the Riverside Hall of Justice, and cases from Temecula and Murrieta at the Southwest Justice Center. San Bernardino County cases go to the San Bernardino Justice Center, the Rancho Cucamonga courthouse, or the Fontana or Victorville courthouses depending on where the offense occurred. Los Angeles County felony burglaries from the central city are arraigned at the Clara Shortridge Foltz Criminal Justice Center, and cases from Long Beach, Torrance, Van Nuys, and Pomona are heard at those branch courthouses. Orange County cases go to the Central Justice Center in Santa Ana or the Harbor, North, or West Justice Centers. Confirm the assignment on the court's current website. Our guide on what prosecutors look at before filing charges explains the review.
Arraignment, bail, and the preliminary hearing. First degree burglary is a serious felony, so bail is set higher on the county schedule, and the judge will look closely at whether anyone was home. After arraignment, a felony burglary case proceeds to a preliminary hearing, where the prosecutor must show probable cause on each element, including intent at entry. Many second degree cases resolve at or before the preliminary hearing as a misdemeanor or as a theft count, and eligible defendants can be considered for misdemeanor diversion or, where a mental disorder played a role, mental health diversion.
Plea negotiations. The defense goal in a residential case is almost always to avoid the strike, which can mean a plea to second degree burglary, to grand theft, or to receiving stolen property with a stipulated sentence. Whether to accept a plea offer depends on the strength of the intent evidence and the exposure at trial.
Frequently Asked Questions
Is burglary always a felony in California?
No. First degree burglary of an inhabited dwelling is always a felony under Penal Code section 460 and Penal Code section 461. Second degree burglary of a store, office, or locked vehicle is a wobbler that can be filed as a felony or a misdemeanor, and store entries during business hours with intent to steal $950 or less must be charged as shoplifting under Penal Code section 459.5.
Can I be charged with burglary if I did not steal anything?
Yes. Burglary under Penal Code section 459 is complete at the moment of entry with the intent to commit theft or a felony. Whether anything was taken goes to the companion theft count and to sentencing, not to whether a burglary occurred.
Is burglary a strike in California?
First degree burglary is a strike. It is a serious felony under Penal Code section 1192.7, subdivision (c), and it is a violent felony under Penal Code section 667.5, subdivision (c), when someone other than an accomplice was present. Second degree burglary is not a strike.
Is it burglary to enter an unlocked car?
No. Vehicle burglary under Penal Code section 459 requires that the vehicle's doors were locked. Entering an unlocked car with intent to steal is charged as theft, attempted theft, or tampering, not burglary, although prosecutors sometimes file burglary anyway and the defense must raise the issue.
Can I burglarize my own house or my ex's house?
Not your own home, but your ex's home is different. Under People v. Gauze (1975) 15 Cal.3d 709, a person with an unconditional right to occupy a residence cannot burglarize it. Once you have moved out, been locked out, or been ordered to stay away by a restraining order, entering your former home with intent to commit a crime can be first degree burglary.
What is the difference between burglary and robbery?
Robbery requires force or fear against a person. Burglary under Penal Code section 459 is about the entry with intent. Robbery under Penal Code section 211 is taking property from a person's immediate presence by force or fear. A home invasion can be charged as both.
Talk to a Burglary Defense Lawyer in Southern California
Gramling Law Group defends burglary, theft, and related charges at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Clara Shortridge Foltz Criminal Justice Center, the Long Beach and Van Nuys courthouses, the Central Justice Center in Santa Ana, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost before the first court date. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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