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Burglary Defense Attorney in OC (PC 459)

What is a burglary?

California defines burglary under Penal Code 459 as:

"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises."

What does the police or district attorney need to prove that I committed a burglary?

The district attorney could show that you had the intent with to commit burglary by having in your possession typical burglary tools such as a crowbar, screwdriver, hammer, slim jim, flashlights, master keys, and other such tools when you entered the structure. However, they will need to prove each of the following elements beyond a reasonable doubt:

  1. You entered a house, room, apartment, tenement, hotel or motel room, trailer, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel (car, train, plane, boat, ship, submarine, etc.), 
  2. With the intent to commit grand or petit larceny or any felony is guilty of burglary, and
  3. One or more of the following items are also true: 1) the value of item taken was $950 or more, or 2) the structure entered was not a commercial building, or 3) the structured entered was a commercial building but it was entered during non-business hours.

How many different types of burglaries are there?

Burglaries are categorized 4 different ways:

  • Residential burglaries: these are places where people live rather than work--apartments, houses, mobile homes, tents, etc. 
  • Commercial burglaries: these are places where people work rather than live--shops, stores, warehouses, storage facilities, etc.
  • First-Degree Burglary
  • Second-Degree Burglary

What is a first degree burglary under PC 459?

When the entering is that of a building or dwelling which is inhabited for dwelling purposes, whether or not people are currently inside, it's considered burglary in the first degree.  Even if the inhabitants have been out of the house for a long vacation, the building is considered inhabited.  The reason it is deemed first degree is because the risk to potential inhabitants become great when there is an entering. No breaking is required in California for a burglary.  The doors could be unlocked! 

What is a second degree burglary under PC 459?

If the building or vessel was not inhabited for dwelling purposes, the risks to inhabitants are not there or lessened greatly.  Thus, it is considered a lesser form of burglary.   

Is burglary under Penal Code 459 a misdemeanor or a felony?

Burglary can be both misdemeanor or a felony.  First degree burglary is a felony.  Second degree burglary is a felony wobbler. This means the district attorney could charge it as a felony or misdemeanor.  

What are the defense for the charge of P.C. 459, burglary? 

The following are defenses to the charge of burglary in California:

  • You did not have the intent to commit a crime or felony therein at the time you entered the structure
  • You only took items which rightfully belong to you or you felt you had a legitimate claim to them, and/or
  • You did not take anything, nor intended to take anything 

What are the penalties or punishment for PC 459, burglary?


  • Probation
  • 2 Years, 4 Years, or 6 Years, and/or
  • A fine up to $10,0000
  • Considered a strike offense 
  • Ineligible for voting, firearms, jury duty and public office
  • Immigration Consequences 


  • Probation (0 days to 1 year with probation)
  • 1.5 Years, 2 years, or 3 years and/or
  • Fine of up to $10,000
  • Immigration Consequences 
  • Ineligible for voting, firearms, jury duty and public office


  • Probation
  • Up to 1 year in jail and/or
  • Up to $1,000 fine
  • Immigration Consequences 

Can my immigration status be affected if I'm arrested for burglary under PC 459?

Yes! Burglary is considered a crime of moral turpitude which could negatively impact you immigration status of non-citizen immigrants

Do I need a lawyer to defend against the charge of PC 459, burglary?

It is highly advisable to find an experienced and caring attorney to fight such serious charges such as burglary under Penal Code 459.  If it's a felony, you could be facing a strike charge.  It could also have disastrous outcome for your immigration status if you're not a US citizen as of yet. 

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