California Penal Code Section 459 There's No Alternative

459 PC – California Breaking and Entering

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 to pc459 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:

  1. The individual entered a building, room within a building or a locked vehicle, and
  1. 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) 459 pc 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) 459pc 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 under California pc 459 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 of severe penalties, you should contact a criminal defense attorney as soon as possible after being charged with breaking and entering in California. 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 California breaking and entering charges can obtain a free consultation from my law firm. We provide defense services to those in Southern California including Orange, Riverside, San Diego, and Los Angeles County.

Call (844) 285-9559 today to obtain a free case evaluation from a skilled burglary attorney with years of experience. 459 pc is a very serious offense and will require an experienced attorney to ensure your case is handled properly. Call us now to get help immediately.

Continue Reading Read Less

GET DEFENSE FROM AN AWARD-WINNING TEAM OF ATTORNEYS

Over the years our firm has earned numerous awards and accolades for delivering outstanding legal representation. Some of our awards include: Admission to The National Top Trial Lawyers Association since 2014, AVVO Rating 10.0 Superb Rating, American Institute of Criminal Law Attorneys Award "10 Best Attorney Client Satisfaction" in 2018, Nationally Ranked Top 100 Under 40 in California Attorney Award in 2017, Member of the Newport Beach Chamber of Commerce since 2018, Martindale-Hubbell Accredited Law Firm, Distinguished in Orange County Metro "Top Attorneys" section, and Featured in Orange Coast Magazine in April 2010 as one of "Orange County's Best Criminal Defense Attorneys".

  • Best Criminal Defense in Irvine - 2022
  • Best DUI Lawyer In Irvine- 2022
  • Best DUI Lawyer in Santa Ana - 2022
  • Best Criminal Defense Lawyer New Port Beach- 2022
  • 10 Best Attorney
  • Top 100 Trial Lawyers
  • Under 40
  • avvo 10.0

WHY WE'RE THE RIGHT CHOICE

  • Over 45 years of Collective Experience
  • Thousands of Cases Successfully Handled
  • Former Deputy District Attorney
  • Impressive Track Record of Results
  • Highly Respected by Peers and Clients
  • Free Initial Consultation

A Winning REcord

Always Pursuing the Best Possible Result
  • Case Dismissed DUI Drugs
  • Charges Dismissed Spousal Abuse
  • Case Dismissed Domestic Violence
  • Prison Sentence Significantly Reduced Felony DUI
  • Penalty Reduced | All Other Counts Dismissed Grand Theft

GETTING STARTED IS EASY

Schedule a Free Consultation Today

A member of our team will be in touch shortly to confirm your contact details or address questions you may have.

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.
  • By submitting, you agree to be contacted about your request & other information using automated technology. Message frequency varies. Msg & data rates may apply. Text STOP to cancel. Acceptable Use Policy

CLient Reviews

At Law Offices of Randy Collins, your satisfaction is our priority! See for yourself what our clients have to say about working with us.

    "The one attorney you want on your side!"
    He is amazing!! I'm am happy to say that my daughter's charges were dismissed! Randy did an excellent job!!! I couldn't have made a better decision the day I called his office.
    Leslie
    "He went above and beyond!"
    Mr. Collins is highly recommended. He really takes the time to listen and answer all your questions. He went above and beyond on helping me out with an issue that was never my fault.
    Erik
    "Giving Randy a shot was the best choice."
    Oh man, I thank my lucky stars for attorney Randy and his team. I was able to get a great deal and the best advice!
    Adri
    "Handled my case in record time with the best possible outcome."
    Randy is awesome! I called so many attorneys and in all honesty he is such an incredible person. All of his office staff is friendly, professional and knowledgeable. He really cares about the welfare of his clients and takes time to discuss your needs in person. I highly recommend him. He handled my case in record time with the best possible outcome.
    Staci
    "An Attorney I Could Trust"
    I called to inquire about a case I was facing, this was one of the many attorneys I was speaking with during a free consult about my next steps. The future was looking more and more alarming as the implications of what I was facing were becoming clear. Halfway through explaining my situation, he interrupted me and asked some basic information, put me on hold for one second and came back telling me he had called around and found out that my case was not proceeding. Four other attorneys I had spoken to did not do this, and in fact had used scare tactics and worst case scenarios to try and hard sell me into signing a retainer. (unfortunately, the evening before I HAD with another attorney signed a retainer but thats for another review) Although I did not need to retain the services of this office, I believe that single action speaks worlds about the integrity, helpfulness, intelligence and capabilities of this office. In a world that is so difficult for the uninitiated, such as the legal system, it seems people are taking advantage of you at every turn. It was a welcome and uplifting experience to see the opposite of that with this law office and I am so grateful I was able to find them and know I could call them if anything were to ever happen to me later in life and know I could trust this team.
    Chris
    "Caring and Genuine Attorney"
    I called the office and right off the bat, I was super impressed at how much help I was receiving without even meeting in person. Chris (the guy who answered my call) is extremely nice and he explains everything so well. He told me how he used to work at the courts for many years (that gave me relief that he knew what he was talking about). Randy (the attorney) is delightful as well and put my worries to rest with his expertise and knowledge. You can tell by his demeanor and how passionate he speaks, that he is genuine and he cares about his clients. This office handles everything from DUI cases to just about anything criminal related.
    Former Client
    "Glad I had Randy to guide me through it."
    I had the unfortunate experience of being too drunk one night in DTF which led to a Drunk in Public charge. I was able to hire Randy after looking online for a good lawyer. I ended up paying about $3,500 for his services and he got the case dismissed. It was an easy process. It was my first time getting in trouble with the law, and I am glad I had Randy and Chris there to guide me through.
    Juan
    "We are forever thankful to have found Randy."
    I cannot express how grateful I am to Randy and his team for the amazing job representing my dad. He was detailed, dedicated, and truly caring for my family throughout the entire process. We are forever thankful to have found Randy. It is rare to find a legal team that feels like extended family. We truly felt so cared for by him and Chris. His knowledge and expertise helped guide us through a very difficult situation and we are so happy to have found this team. I would refer Randy to anyone looking for legal representation. Randy is the best lawyer to call!!
    Julia