top of page

Penal Code 459 Burglary


To prove you guilty of PC 459, Burglary, the DA must prove each of the following elements beyond a reasonable doubt:

You entered a building (or a room within a building or a locked vehicle or structure)

When you entered, you intended to commit a theft or any kind of felony.


Next, depending on what kind of burglary, there can be additional elements to prove.


By default, if you’re guilty of burglary, it’s burglary of the second degree. If you enter an occupied residential property, that bumps your offense up to a first degree burglary, which is a “strike” offense.


The DA has to prove that you entered with the intent to commit any kind of theft, even if it was a really minor misdemeanor theft amount. 

Alternatively, you’re guilty of the DA can show you were entering the structure to commit any kind of a felony (theft-related or not).

What if you didn’t commit the offense once you entered?

It doesn’t matter. That’s not a valid defense.  The DA doesn’t need to prove you actually committed offense as long it’s clear you entered with the intent to do so. 

What counts as entering?

Under the law of burglary, a person enters a building if some part of your body or some object under your control (e.g., a bag) penetrates the area inside the building’s outer boundary. A building’s outer boundary includes the area inside a window screen.

What about a balcony?

An attached balcony designed to be entered only from inside of a private, residential apartment on the second or higher floor of a building is inside a building’s outer boundary.

Does a jury have to unanimously agree on which crime you intended to commit prior to entering?

No, but all 12 jurors must at least unanimously agree that you intended to commit a theft or a actual felony at the time of the entry.

bottom of page