California Penal Code 459 covers the crime of burglary. Often referred to as “breaking and entering,” burglary is defined as the act of entering a premise with the intent of committing a felony or stealing property. It is a common misunderstanding that in order to be charged with this offense that you must actually “break” into a locked building or structure. You can be charged with breaking and entering even though there is no forced entry. Therefore, if you walk into an open garage planning to take tools that are lying on a workbench, you can be found guilty.
It is also a misconception that you must enter a building or home to be guilty. The courts use a broad definition of building for the purpose of deciding a burglary case. The term “building” has included structures such as a telephone booths, storage buildings, and animal pens. For example, you can be charged with this offense if you simply walk onto a loading dock planning to steal property on the dock. Auto burglary is the only instance where the “premise” must be locked in order to constitute this crime.
Whether you actually take the property is irrelevant because it is your “intent” to steal property rather than the actual theft that makes you guilty under Penal Code 459. The two elements that a prosecutor must prove in order for an individual to be found guilty under Penal Code 459 are:
- The individual entered a building, room within a building or a locked vehicle, and
- When the individual entered the premises or automobile; he or she intended to commit a felony offense.
What is the difference between first degree (FD) and second degree (SD) Penal Code 459 violations?
First degree (FD) is defined as entering an inhabited structure with the intent to steal or commit a felony. The structure does not need to be occupied at the time of entry for the defendant to be charged with a FD offense. For example, if a defendant breaks into a home that is for sale with the intent of stealing the electronics that are in the home but leaves before he has a chance to take the items, he can be found guilty of a FD offense.
First, the structure fulfills the element of an inhabited structure even though no one is living in the home at the present time. Second, even though the defendant was interrupted and left before he had a chance to take the items, he had intended to steal when he entered the home thereby satisfying the second element under Penal Code 459.
Second Degree (SD) is often referred to as commercial burglary because this charge covers commercial buildings and other structures and premises other than where people live. These structures include but are not limited to animal enclosures, commercial buildings, vehicles, chicken coops, telephone booths, loading docks, as well as boats and railroad cars. The element of intent remains the same for SD as it does for FD.
For example, if a defendant enters a warehouse intending to steal the merchandise that is stored in the warehouse, he has satisfied the elements to be found guilty of SD. Likewise, if a defendant was to enter a garage intending to steal tires but he is chased away before he has the opportunity to take the tires, he has still committed a SD offense. He entered the garage with the intent to steal the tires.
It is important to remember that breaking and entering includes the intent or the commission of a felony. For example, if a person enters a home with the intent of committing rape (a felony offense in California), he can be charged with both rape and FD burglary.
What Sentence Will I Receive for a Penal Code 459 Conviction?
First degree (FD) is always a felony under California Penal Code 459. It is often referred to as “residential burglary” because it takes place in an inhabitable structure. The penalties for FD include a maximum fine of $10,000 and two to six years in a California State Prison. FD counts as a strike under California’s Three Strikes Law.
Second degree (SD) or “commercial burglary” can be charged as a felony or a misdemeanor. The penalty for a charge of SD misdemeanor burglary is one year imprisonment in the county jail and a maximum fine of $1,000. SD felony burglary carries a two to three year sentence in a California State Prison and a maximum fine of $10,000.
Common Defendant Questions
I have been charged with committing an offense in Orange County, but my arresting officer never read me my Miranda Rights. Can I have my charges dropped?
- An officer’s failure to read a suspected criminal their Miranda Rights at the time of their arrest rarely results in a case dismissal. If you were to have confessed to your crimes during your arrest, a skilled defense lawyer should be able to have your confession deemed inadmissible in court.
I have never been arrested before, but I am now facing charges for second degree burglary. Will I be able to avoid jail time and just get probation?
- A conviction can result in prison time, so it may be difficult for you to avoid any incarceration, but it depends upon a number of different factors. In some situations, a plea deal can be reached where you could possibly avoid incarceration by pleading guilty and serving an agreed upon penalty.
I have a conviction for PC 459 on my criminal record. Is it possible to have it expunged?
- Although there are some penal codes that cannot be expunged, PC 459 is not one of them. Contact our firm today to obtain a free case evaluation and find out for sure whether you are eligible for an expungement.
Do I need an attorney for an alleged Penal Code 459 violation?
Because this offense carries severe penalties, you should contact a criminal defense attorney as soon as possible after being charged. Furthermore, because first degree counts as a strike under the Three Strikes Law, you need an experienced attorney to represent you in your case. If this is your third strike, you could be facing between 25 years to life imprisonment if you are found guilty.
An experienced criminal defense attorney has a variety of defenses he or she can use to create reasonable doubt in the minds of a jury. Beating a burglary charge often involves attacking the element of intent because intent is much more difficult to prove than the act of entering property. Common defenses may include mistaken identity, that you took property that belonged to you, that ‘you were given permission to take the items or that you did not have the intent to commit a crime when you entered the property.
It is always advisable to seek the advice of experienced counsel when you are charged with this crime. Attorneys understand California criminal statues and know what defenses are available to an individual facing burglary charges. If you a facing huge fines and lengthy jail time, you want an experienced attorney at your side to protect your rights.
Those facing charges can obtain a free consultation from my law firm, MacGregor & Collins, LLP. We provide defense services to those in Southern California including Orange, Riverside, San Diego, and Los Angeles County.
Call (888) 250-2865 today to obtain a free case evaluation from a skilled burglary attorney with years of experience.