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Breaking and Entering – California PC 459

Under California Penal Code 459, “breaking and entering” commonly referred to as burglary, is a felony in California. Burglary is the entering of another’s residential or commercial dwelling with intent to commit theft or any felony. Although this crime is commonly referred to as “breaking and entering,” forced entry or “breaking” is no longer necessary for you to be convicted of burglary in California.

Examples of Breaking and Entering

Breaking and entering under PC 459.
Breaking a car window to steal an item could result in a charge under PC 459.

The following examples could result in burglary charges:

  • Breaking a car window in order to steal money inside;
  • Walking into another’s house to steal food or other items (this can be considered breaking and entering even if the doors were left unlocked or open;
  • Entering a private office in order to commit a violent felony offense; or
  • Entering a closed bank to commit robbery.

Prosecution of PC 459 Charges

In order to convict you of breaking and entering, the prosecution must prove that you 1:

(1) Entered a house, building, room within a building, locked vehicle, or other dwelling; AND
(2) When you entered you intended to commit theft or any felony.

The law does not require that you actually succeed in committing a crime to be guilty of burglary; all that is necessary is that you entered a dwelling or vehicle intending to carry out a theft or other felony.

“Entering” – Defined

You “enter” a building if any part of your body breaks the plane of the building’s outer boundary. Also, even if no part of your body crosses the outer boundary, if you use any object as a tool to reach the inside, you have still entered for purposes of PC 459.

Possible Defenses to Breaking and Entering Charges

A skilled criminal defense attorney may be able to raise several legal defenses to PC 459. Some of these defenses might include:

  • Mistaken identity. You have an alibi to show that you are not the person that the prosecution claims committed the burglary.
  • No entry. You never entered another’s dwelling because you never crossed the structure’s outer boundary;
  • No intent. You did not intend to commit theft or any felony crime before you entered the dwelling or vehicle;
  • Insufficient evidence. If there is a weakness or inconsistency in the evidence presented by the prosecution, your attorney may be able to challenge its validity.
  • Duress or threats. If you were forced or threatened to break and enter the dwelling or vehicle, you should not be convicted of this crime.

Sentencing and Punishment for Breaking and Entering

Burglary can be charged in either the first or second degree. 2 In order for you to be convicted of first degree burglary, the prosecution must prove that the dwelling was inhabited. A dwelling is considered inhabited if someone uses it. However, it does not matter whether someone is actually inside at the time of the alleged entry. If the dwelling is uninhabited, you will be charged with burglary in the second degree. 3
If you are convicted of breaking and entering in California, you face the following consequences 4:

Wallin & Klarich PC 459 lawyers
Because the consequences of a PC 459 conviction are so severe, you will want to hire a strong criminal defense team to represent you.

Second degree burglary is a wobbler. A wobbler is a crime where the prosecution has discretion to charge you with a misdemeanor or a felony. The circumstances of your case will determine whether you are charged with a misdemeanor or felony.

If you are convicted of misdemeanor breaking and entering in the second degree, you face a maximum sentence of up to 364 days in county jail, a maximum fine of $1,000, or both jail and fine. If you are convicted of felony breaking and entering in the second degree, you face a sentence of up to 16 months, two or three years in state prison, a maximum fine of $10,000, or both prison and fine.

First degree burglary is a felony in California, and will result in a strike on your record. 5 If you are convicted of felony breaking and entering in the first degree, you face a sentence of two to four or six years in state prison, a maximum fine of $10,000, or both prison and fine.

Frequently Asked Questions Regarding Breaking and Entering Laws

What is a “dwelling” for purposes of PC 459?

California is very liberal about what structures qualify as a dwelling for purposes of PC 459. Any of the following places, if entered for an unlawful purpose, meet the statutory definition of a dwelling:

“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.”

Can I be charged with breaking and entering if I entered an unlocked car to take something?

No. Under California Penal Code 459, there must be forced entry in order to be charged with breaking and entering a vehicle (also known as auto burglary). It is important to note that this exception only applies to automobiles. If someone left his or her car unlocked and windows down, and you take something, then you should not be convicted of a violation of PC 459. However, you likely will be charged with another crime such as theft.

What if I only intended to snoop around when I entered someone else’s property, but had no intention of taking anything until I got there?

You must have the intent to commit a theft or felony before or while you enter someone else’s dwelling. If your intent was to “snoop around”, then you may have a plausible defense to a burglary charge. However, you could be convicted of the crime of trespassing on private property. A skilled criminal defense attorney may be able to get your charges reduced or dismissed altogether.

Can I be charged with breaking and entering if I climb up to someone’s balcony but can’t get inside?

Yes. Balconies that are both attached, on the second floor or higher, and designed to be accessed only from inside an apartment or home qualifies as the building’s outer boundary. Thus, if you climb onto someone’s balcony intending to steal or commit any felony, you’ve entered the dwelling and can be charged with breaking and entering.

Contact Wallin & Klarich Today If You Have Been Charged with Breaking and Entering in Violation of PC 459

Wallin & Klarich will fight for you if you are accused of breaking and entering under PC 459.
Your future is too important to risk. Call Wallin & Klarich today.

If you or a loved one has been charged with breaking and entering in violation of PC 459, you need to contact an experienced criminal defense attorney immediately.

At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing breaking and entering charges for over 30 years. We will meet with you to review the facts of your case, and plan a defense strategy that will help you get the very best outcome possible.

With offices located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.


1. [http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf]
2. [Pen. Code, § 460]
3. [Id.]
4. [Pen. Code, § 461]
5. [Id.]

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