California Penal Code 459 P.C.

Burglary typically involves the unlawful entry into a residential or commercial structure with the intent to commit a crime inside, including but not limited to theft or larceny.

What is a Burglary Charge?

Under California Penal Code 459 P.C., you can be prosecuted for Burglary if you allegedly entered a structure (including a boat, airplane or vehicle) with the intention of committing either a theft or a felony therein. If theft is involved, the money or value of the property at issue must be more than nine hundred and fifty dollars ($950.00) to justify a Burglary charge. (If you allegedly stole $950 or less from a commercial structure, you will likely be charged with Shoplifting.)

The prosecutor does not need to prove that you actually committed theft or a felony in the structure, but only that you had the specific intent to do so. You can be charged with Burglary even if the structure was open and unlocked, or if only a part of your body entered the structure (for example, you reached into the structure through a window to steal something).

There are different degrees of Burglary, depending on the structure entered, as well as other circumstances. If you allegedly broke into a residence or non-residential building (such as an office building or department store), then you will be charged with Residential Burglary (first-degree burglary) or Commercial Burglary (second-degree burglary), respectively. If you allegedly broke into someone’s locked vehicle, then you will be charged with Automobile Burglary.

Under certain conditions (namely, Residential Burglary where the occupant/tenant/owner is present at the time of the alleged crime), you could even be charged with a strike (a violent felony) under California’s “Three Strikes law” (California Penal Code 667 P.C.), even if no injury occurred.

All non-strike burglary crimes can be charged as a “wobbler” offense, meaning that the prosecutor can charge you with a misdemeanor or a felony, depending on the facts of the case and your criminal record.

What are Examples of Burglary?

Examples of situations involving Burglary include the following:

  • You break the lock on a boat house and then enter to steal the owner’s laptop;
  • You enter someone’s house after breaking the kitchen window with the intent to set the garage on fire;
  • You enter an open car dealership during regular business hours with the intent to commit credit card fraud to purchase a new automobile.
  • You break into a locked gym in the middle of the night to take a shower and leave after stuffing a small hand towel into your backpack.

What Does the Prosecutor Need to Prove for a Burglary Charge?

To prove that you are guilty of Burglary under California Penal Code 459 P.C., the prosecutor must prove beyond a reasonable doubt each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 1700):

  • You entered a building, room within a building, locked vehicle, or a structure;
  • When you entered, you intended to commit theft or a felony; and
  • The value of the property that you took or intended to take was more than $950.00 or the structure you entered was a non-commercial establishment or the structure was a commercial establishment that you entered during non-business hours.

What Happens If I am Convicted of a Burglary Charge?

If you are convicted of Burglary under California Penal Code 459 P.C., you face the following punishment (excluding any sentencing enhancements):

  • Two, four, or six years in prison (if you are convicted of first-degree Burglary) (see California Penal Code 461 P.C.). Since this is a strike offense, you will have to serve at least 85% of your sentence, even with good behavior, in addition to any sentencing enhancements for the strike; or
  • Sixteen months, two years, or three years in county jail (if you are convicted of second-degree felony Burglary) (see California Penal Code 1170(h) P.C.); or
  • A maximum of one year in county jail (if you are convicted of second-degree misdemeanor Burglary) (see California Penal Code 1170(h) P.C.); and
  • Probation of three or five years if prison (felony, assuming prison is not part of the sentence, or misdemeanor);
  • Possible counseling (felony or misdemeanor);
  • Possible community service (felony or misdemeanor);
  • Victim restitution (if applicable);
  • Court fines;
  • Possible loss of ability to obtain or maintain a professional license, loss of employment or educational opportunities, or adverse immigration consequences (if applicable).

What are My Possible Defenses to a Burglary Charge?

Burglary cases can often be resolved during the investigation stage even before criminal charges are actually filed. Specifically, a highly experienced and skilled Los Angeles County Burglary attorney like Ninaz Saffari might be able to convince the investigating detective to not refer the case to the District Attorney’s Office for prosecution, or to convince the D.A.’s Office not to file charges if the case has already been referred. These are called Pre-Files, which Ms. Saffari has a great deal of experience in successfully negotiating. See her Case Results.

If you are charged with Burglary, Ms. Saffari will first conduct a thorough investigation, often with the help of her private investigator, to ascertain all relevant facts. Again, if possible, she will attempt to get the charges dismissed either before or shortly after they are filed. If she takes the case to trial, she will often use an expert witness who will argue that the alleged harm never occurred, did not occur to the degree claimed, occurred but was the result of an accident or unintentional conduct, or that the District Attorney has otherwise failed to provide enough evidence to meet the high threshold to prove Burglary.

The following are the possible defenses to a Burglary charge:

  • No entry. No part of your body or object under your control actually entered the building, locked vehicle, or structure.
  • Lack of intent. At the time of you entered, you did not have the intent to steal anything from, or to commit a felony inside the building, locked vehicle, or structure. In other words, even if you did steal something or commit a felony after entering, so long as the intent arose after you entered, you cannot be guilty of Burglary;
  • Consent. You had consent to enter the structure (so long as consent did not result from unlawful means, such as threats or use of force). Alternatively, if you were only given limited consent, so long as you did not exceed the limits of that consent, you cannot be guilty of Burglary;
  • Claim of Right. You entered the structure to receive something that actually belonged to you or that you reasonably believed was yours (i.e., you had a viable “claim of right” for lawful ownership or possession of the property taken);
  • False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
  • Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who committed the alleged burglary. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
  • Constitutional defenses. These include lack of probable cause, police misconduct (coerced confession, planted evidence, falsified police report, racial profiling, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
  • Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
  • The accuser and/or witnesses are not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.

What Kind of Burglary Charges Has Ninaz Saffari Defended?

Since 2005, Ninaz Saffari has successfully represented hundreds of clients (adults and juveniles) against Burglary charges, including both as felonies and misdemeanors. Many of her successfully defended clients faced many years in prison, as well as strike charges. See her Case Results.


If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County Burglary criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).


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