California Penal Code Section 459


In California, these types of offenses can be charged as a misdemeanor or a felony offense. If you or your loved one is facing PC 459 charges, it is in your best interest to speak with an experienced defense attorney to ensure your rights are protected. At MacGregor & Collins, LLP, a Orange County burglary lawyer can provide you with a free professional case evaluation for up-to one hour. If you are serious about beating your charges, obtaining legal counsel will help you evaluate all of your options.


How Does California Define Burglary?


According to California law, entering a structure without the owner or legal tenant’s permission is considered an act of burglary.

California Penal Codes 458-464 consider two elements of the crime:


  • A building was entered without the owner or resident’s consent
  • This breaking and entering was executed with the intent to commit a felony or steal


Burglary in California is sub-categorized into first-degree and second-degree, which will be explained in detail below. This crime can lead to sentencing of up to six years in prison. An experienced criminal defense attorney can help to avoid a maximum sentence and/or negotiate a plea deal.


What Is First Degree Burglary?


The prosecution of first degree offenses involve proving that the crime was executed in an inhabited structure; and that there was an intention to steal or commit a felony. The law further states that regardless of whether the building or structure was inhabited at the time, it’s still regarded as first degree offense if it’s classified as a residential property.


Penalties for California First Degree Burglary


A first degree offense is a felony in California, and sentencing includes:


  • 2, 4 or 6 Years Imprisonment in the California State Prison
  • $10,000 – Maximum Fine


What Is Second Degree Burglary?


Second Degree Burglary in California happens when the offender illegally enters a commercial real estate or all other types of properties outside of residential dwellings. This varies however, given that warehouses, stores, and shops are also listed as “inhabited dwellings” under Penal Code 459.


Penalties for Second Degree Offenses


Second level offenses in California can be handled as a misdemeanor or felony based on the specific circumstances of the case. The sentencing for each include:


2nd Degree Offense – Misdemeanor Charges:


  • 1 Year Imprisonment in the County Jail
  • $1,000 – Maximum Fine


2nd Degree Offense – Felony Charges:


  • 2 or 3 Years Imprisonment in the California State Prison
  • $10,000 – Maximum Fine


How Does The Prosecution Prove Intent?


Since “proving purpose of theft or felony” for entering a property is one of the main elements the prosecution needs, how is this typically proven? The answer includes:


  • How the accused dressed; did he or she where clothing to cover their identity?
  • What time of day the crime transpired; many burglaries occur when the accused stands a greater chance of not being seen.
  • If the burglar was caught with specific tools that are commonly used in burglaries like crowbars or hammers.


What Is Auto Burglary?


This is defined as breaking into a secured vehicle, with the purpose of stealing the car, possessions inside the car, or with the purpose of carrying out another crime. Auto offenses carry the same sentencing as a second level offense.


Stipulations for Breaking and Entering Laws


There are additional outlines in California Breaking and Entering Laws, and these include:


It is a felony to use explosives or items that have the ability to cut through steel or concrete, with the intent to enter, steal or commit a felony. Irrespective of where these burglaries are executed, felony charges apply for 3, 5 or 7 years of imprisonment.


While probation is used in sentencing for other crimes, this is not the case with California breaking and entering. Penal Code 462 stipulates that probation should not be granted unless there is a greater benefit in ordering this option. If probation is granted, the reasons have to be justified by the judge.


The Difference between Burglary and Trespassing


Trespassing is similar to burglary in that there’s usually an illegal entry in a property without the owner’s consent. However, distinctions between the two includes:


  • Trespassing does not include intent to steal or commit a felony as an element of the crime
  • Trespassing can occur on an empty land space


Common 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.



How to Fight Accusations


If you’re facing charges, the Orange County burglary defense attorneys at MacGregor and Collins can help. We’ll help you secure your future and avoid extended incarceration. Call us today at 888-250-2865.


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