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Burglary Defense (PC 459)
Burglary in California is not just breaking and entering — it's entering any structure with intent to commit theft or any felony. Even walking into an open store with intent to steal can be burglary.
Burglary defined — broader than you think
PC 459 criminalizes entry into "any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, mine, or any underground portion thereof" with intent to commit theft or any felony.
Key insights:
- Entry can be partial — sticking a hand or tool into a structure counts
- The structure can be open to the public
- You don\'t have to "break in" — walking through an open door is entry
- The intended crime doesn\'t have to be completed
Defenses
1. No intent at the time of entry
The most powerful defense. If you formed the intent to steal AFTER entering, it\'s not burglary (might be theft only). Example: shopping legitimately and then deciding to steal an item upon seeing it.
2. Consent to enter
If the property owner consented to your entry, the entry was lawful — no burglary even if you took something (just theft).
3. Mistake of fact
Honest, reasonable belief that the property was yours or that you had permission.
4. Insufficient evidence of identification
Especially for residential burglaries, identification often comes from poor surveillance video or fleeting eyewitness glimpses.
5. Constitutional violations
Suppression of unlawfully obtained evidence (search warrant defects, illegal stops).
Sentence considerations
- First-degree burglary: 2, 4, or 6 years prison (strike)
- Second-degree burglary: 16 months, 2, or 3 years (wobbler)
- "Person present" enhancement (PC 667.5): adds 1 year if someone was in the residence
- "Hot prowl" (someone home + nighttime): more aggressive prosecution
Charged with burglary in Orange County? Contact our office immediately.
Frequently Asked Questions
What are the elements of burglary in California?
(1) Entry into a building, structure, or vehicle, (2) with intent to commit theft or any felony at the time of entry. The entry need not be forced — walking through an open door qualifies. The intent must exist at the moment of entry.
What is the difference between first-degree and second-degree burglary?
First-degree (residential): entry into an inhabited dwelling. Always a felony, always a strike. 2, 4, or 6 years state prison. Second-degree (commercial): entry into any other structure. Wobbler. After Prop 47, commercial burglary for theft under $950 is now shoplifting (misdemeanor).
Is burglary a strike under Three Strikes Law?
First-degree (residential) burglary is always a strike under PC 1192.7(c)(18). Second-degree burglary is not a strike unless great bodily injury is inflicted or a firearm is used.
Can I be charged with burglary if I didn't take anything?
Yes. Burglary is complete at the moment of entry with intent. You don't need to actually steal anything — the prosecution only needs to prove intent at entry. This is why intent is the key defense.
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