What are the factors or elements for 459 PC Burglary?
Under Penal Code 459 PC defines “burglary” is “entering a
- Room,
- Structure, or
- Locked vehicle
with the intent to commit a felony (or, in some cases, a petty theft) once inside.”
Burglary is often referred to as “breaking and entering.” But prosecutors can charge you with this offense even if there is no forced entry of a room or structure. Only auto burglary requires an actual break-in.
Legal Consequences:
Burglary of a house, apartment, hotel room (or other structure where people are living) is always a felony in California. It is known as “first degree burglary” or “residential burglary.”
Penalties for first degree burglary include up to 6 years in state prison. This form of burglary also counts as a strike under California’s three strikes law.
Penalties for residential (first degree) burglary in California
Burglary of a house, apartment, hotel room (or other structure where people are living) is always a felony in California. It is known as “first degree burglary” or “residential burglary.”3
Penalties for first degree burglary include up to 6 years in state prison. This form of burglary also counts as a strike under California’s three strikes law.
Penalties for commercial (second degree) burglary in California
Burglary at a store, business (or any place where people are not residing) is considered “second degree burglary” in California.4 It is also referred to as “commercial burglary.”
(If you enter a store or other business while it is open during regular business hours, intending to steal items worth nine hundred fifty dollars ($950) or less, then you will be charged not with burglary but with the related offense of shoplifting under Penal Code 459.5 PC.)
Commercial burglary is a “wobbler” offense. This means prosecutors may elect to file the charge as either a misdemeanor or a felony. The choice of felony versus misdemeanor usually hinges on the circumstances of the offense and the person’s criminal record, if any.
As a misdemeanor, burglary charges carry up to one year in county jail. Felony commercial burglary can subject you to a jail sentence of up to 3 years.
Commercial burglary convictions…even felony ones…do not count as strikes under California’s three strikes law.