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Residential Burglary Law & Defense

PC 459, 460(a), & 459/460(a)

Information on the crime of residential burglary (also known as first degree burglary) can be found at California penal code sections 459 & 460(a). Residential burglary is often charged with the two code sections together as PC 459/460(a)

This article is intended as a summary of the law, the defenses, and the punishments associated with first degree residential burglary.

For information on the crime of commercial burglary (also known as second degree burglary), please visit commercial burglary. 

PC 459 Law (Abbr.)

PC 459: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, inhabited camper, vehicle (when doors are locked), aircraft, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary (PC 459 Abbr.)

PC 460(a) Every burglary of an inhabited dwelling house or vessel, or the inhabited portion of any other building, is burglary of the first degree (PC 460(a) Abbr.).

PC 460(b) All other kinds of burglary are of the second degree (PC 460(b), including commercial 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.

In order for the district attorney to prove that the defendant is guilty of first degree residential burglary under PC 459/460(a), the district attorney must prove that the defendant:

  • Entered a home, or a room within a home, and
  • When the defendant entered the home he or she intended to commit a felony or theft inside

For example, if the defendant enters a home with the intent to steal a baseball cap (a misdemeanor theft crime), or enters a home with the intent to commit the crime of rape (a felony), then the defendant may be charged with residential burglary under PC 459/460(a) for either crime. The theft crime does not have to be a felony theft crime.

Note: The intent to commit theft or a felony inside a residence must be formed before the defendant enters the residence under residential burglary law. For example, if the defendant breaks into a home to get out a storm (no intent to commit theft or a felony inside the home), and thereafter, the defendant decides to steal property in the home, then the defendant should not be charged with burglary because he or she did not have the intent to commit theft or a felony before he or she entered the home.

"Breaking" defined

To break into a home or residence does not require actual breaking. Burglary is often referred to as breaking and entering but this is misnomer. If the defendant simply opens a door that was not already opened in order to gain access to a home the crime is complete, so long as the requisite intent to either commit a theft or felony is also present.

In addition, even if a defendant does not enter any part of his or her body into the home or residence a residential burglary may still be committed if the defendant used an object to enter the home.

For example, a robot with a camera or a long stick used to collect an object through a window is considered a residential burglary (PC 459 or 460).

"Entering" defined

As soon as the defendant enters the residence with the intent to commit a theft, or enters the residence with the intent to commit a felony within the residence, the crime is complete. But what is entering? The law is that any intrusion by force, into a residence, no matter how slight the intrusion is, or how slight the amount of force used, constitutes entering a residence (no actual breaking of the property is required to charge first degree residential burglary (PC 459/460).

For example, if the defendant opens an unlocked door to a home, without breaking any part of the door, and with almost no force used to open the door, then the defendant may still be considered to have entered the home, so long as he or she makes at least a slight intrusion into the home.

No actual felony or theft needs to be committed in the residence for the crime of first degree burglary to be complete. So long as the defendant intended to commit a theft or a felony inside the residence before he or she enters the residence the crime is committed.

For example, if the defendant enters a home with the intent to commit a rape in the home, but the woman that the defendant intended to rape was not home at the time, the act of the defendant entering the home, coupled with the defendant's intent to commit the crime of rape (a felony), is considered a first degree residential burglary even though the defendant never accomplished the target crime (the rape).

Where the defendant tries to break into a home or residence and the defendant is unsuccessful, either because he or she is caught before entering the home, or because he or she could not actually get into the home, the defendant may be charged with attempted residential burglary (charged under PC 664/459, 664/460(a), or PC 21a). For more on the law of attempt crimes please see attempt crimes.

"Residence" defined

According to penal codes 459 and 460(a), a home or residence is just about anyplace a person can regularly reside so long as a person actually resides in that place. For example, a vehicle can be a residence, as well as an apartment, a vacation house, a janitorial office (if someone lives there), a boat, a parked plane, etc.

Sentence for PC 459, 460(a), & 459/460(a):

Prison Sentence: First degree residential burglary is charged as a felony. The maximum prison sentence for first degree burglary is six years in prison (PC 460(a).

Attempted Residential Burglary is charged as a felony. The maximum sentence for attempted first degree burglary is three years in prison

Burglary & Target Crime Charged: When the defendant enters a residence to commit theft or a felony inside the residence the crime of burglary is complete. Therefore, if the defendant actually commits the theft or a felony inside the residence after entering then he or she may be charged with that crime as well. For example, if the defendant enters a residence with the intent to steal a purse, and the defendant actually steals the purse, then the defendant may be charged with burglary and the theft of the purse as two different crimes.

Good Behavior Credits: If the defendant is sentenced to prison for residential burglary, and the defendant has not previously been convicted of a strike offense, then the defendant is eligible for up to fifty percent (50%) credit off a prison sentence for good behavior while in prison.

Note: If there is a victim in the residence at the time of the burglary then the defendant is eligible for up to fifteen percent (15%) credit off a prison sentence for good behavior while in prison. 

Probation Sentence: Probation is period of supervision with terms of probation that the defendant must obey instead of an actual prison sentence. A probation sentence for the crime of burglary of a residence is considered formal probation which is monitored by a probation officer. Some felony probation terms include a jail sentence but jail sentences that are made a part of probation sentences are generally much shorter than prison sentences and may be served through work release or house arrest (electronic monitoring). If the defendant fails to obey the terms of his or her probation then the defendant will be in violation of probation and may be sentenced to further punishment, including termination of probation and sentence to prison.

Probation sentences after a conviction for residential burglary are considered "unusual" and the court must find good cause to allow a defendant to serve his or her time on probation as opposed to a prison sentence. The court will considered the defendant's criminal history and the egregiousness of the defendant's crime in considered whether or not to grant a probation sentence.

Suspended Prison Sentence: First degree residential burglary does not qualify for suspended prison sentences (also called joint suspension), or split prison sentences. This means that if the defendant is found guilty of PC 459, 460, or 459/460(a) the defendant must serve either a probation sentence (see above) or an actual prison sentence and no part of a prison sentence may be served out-of-custody (See PC 1170(h) Sentences).

Crime Involving Moral Turpitude: Burglary of a residence is considered a crime involving moral turpitude. Crimes that involve moral turpitude are crimes that are considered to be morally wrong and carry severe consequences for non-U.S. citizens and licensed professionals. Please see immigration consequences for criminal convictions for further info.

Three Strikes Law: Residential burglary is considered a strike offense under California's Three Strikes Law. Residential burglary is classified as a serious crime, but if there is a victim at home during the burglary the crime is considered both a serious crime and violent crime.

In addition to any jail or prison sentence, criminal convictions of PC 459 or 460 can lead to other severe consequences such as: Immigration issues (non-U.S. citizens), probation sentence, penalty fines, lawsuits, employment loss, and more.

Defense to PC 459 & 460

Common defenses to first degree residential burglary include: insufficient evidence to prove that the defendant entered a home or residence with the intent to commit a felony or a theft, statute of limitations, necessity, mistake of fact, insanity, intoxication, illegal search and seizure, coerced confessions, alibi, self defense, defense of others, and more.

For more information on the common defenses to PC 459 crimes, please visit defenses.

If you are charged with first degree residential burglary, or PC 459, 460(a), or 459/460(a), contact our criminal defense attorneys without delay to learn your rights and defense options. Our criminal attorneys are experienced trial attorneys and have successfully defended major crimes, including the crime of burglary of a residence. Call today!


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