PC 459 Explained: California Burglary Law

California Penal Code section 459 defines burglary as entering a house, room, store, locked vehicle, or one of the other places the statute lists, with the intent to commit grand or petit larceny or any felony. The crime is the entry with that intent. Nothing has to actually be taken.

This page covers what section 459 says, what the prosecution has to prove under California's official jury instruction, how sections 460 and 461 divide burglary into first and second degree and set the penalties, and how the shoplifting statute, section 459.5, carves certain store entries out of burglary. It covers California state law only.

Information last verified against primary sources on October 20, 2026. This article has not yet been reviewed by a licensed lawyer.

What 459 PC says

Section 459 has two subdivisions. Subdivision (a) defines burglary and the word "inhabited." Subdivision (b) deals with structures damaged by disasters.

The places covered

Subdivision (a) applies to anyone who enters any of these:

• A house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building.
• A tent.
• A vessel (as defined in Harbors and Navigation Code section 21) or a floating home (as defined in Health and Safety Code section 18075.55(d)).
• A railroad car, or a locked or sealed cargo container, whether or not mounted on a vehicle.
• A trailer coach, house car, or inhabited camper (each as defined in the Vehicle Code).
• A vehicle as defined by the Vehicle Code, "when the doors are locked."
• An aircraft (as defined in Public Utilities Code section 21012).
• A mine or any underground portion of one.

The intent required

The entry must be made "with intent to commit grand or petit larceny or any felony." A person who enters with that intent "is guilty of burglary." California's theft offenses themselves are covered in California theft laws.

"Inhabited"

Subdivision (a) defines the term that later decides the degree:

"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."

So a home can be "inhabited" while nobody is inside, and a home its residents left only because a natural or other disaster forced them out still counts.

Subdivision (b): disaster-damaged structures

"The fact that the structure entered has been damaged by a natural or other disaster, or the extent of that damage, does not preclude conviction."

What the prosecution has to prove

The official jury instruction is CALCRIM No. 1700, "Burglary (Pen. Code, § 459)," published by the Judicial Council of California (2026 edition). It tells the jury the prosecution must prove that:

1. The defendant entered a building, a room within a building, a locked vehicle, a structure, or another place the statute lists.
2. When entering, the defendant intended to commit theft or one or more specified felonies.

The instruction stresses timing and intent. It tells jurors that the defendant does not need to have actually committed the theft or felony "as long as (he/she) entered with the intent to do so."

When the prosecution alleges more than one intended crime, the jurors must all agree the defendant intended to commit one of them at the time of entry, but they do not all have to agree on which one.

What counts as entering

The instruction includes optional language, given when it fits the facts, that sets a low bar for entry:

• A person enters a building "if some part of his or her body [or some object under his or her control] penetrates the area inside the building's outer boundary."
• A building's outer boundary includes the area inside a window screen.
• An attached balcony designed to be entered only from inside a private residential apartment on the second or higher floor is inside the building's outer boundary.

The shoplifting question in the instruction

When the evidence supports a defense that the crime was shoplifting under section 459.5, CALCRIM No. 1700 adds a third element. The prosecution must then also prove that the value of the property taken or intended to be taken was more than $950, or that the structure was a noncommercial establishment, or that it was a commercial establishment entered during non-business hours.

First-degree vs. second-degree burglary

Penal Code section 460 divides burglary into two degrees:

"(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree."

The dividing line is whether the place entered was an inhabited dwelling or an inhabited portion of a building. A locked car, or a store with no inhabited portion, is not on the subdivision (a) list, so its burglary falls under subdivision (b) as second degree.

Penalties under 459 PC

Section 459 sets no punishment. Section 461 does:

"(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170."

First-degree burglary carries state prison only. There is no county jail alternative in section 461(a).

Section 462(a) adds that probation shall not be granted to a person convicted of burglary of an inhabited dwelling house, a trailer coach, an inhabited floating home, or the inhabited portion of any other building, except in unusual cases where the interests of justice would best be served by granting probation. Under section 462(b), a court that grants probation in such a case must state its reasons on the record. Penal Code section 1192.7(c)(18) separately lists "any burglary of the first degree" as a serious felony.

Second-degree burglary can be handled as a misdemeanor (county jail up to one year) or a felony (imprisonment under section 1170(h)). Section 461(b) does not specify a term for the 1170(h) option. Section 1170(h)(1) supplies one for that situation:

"Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years."

Under paragraph (3) of section 1170(h), an executed sentence under that subdivision is served in state prison instead when the defendant has a prior or current serious felony conviction (as described in section 1192.7(c)) or violent felony conviction (as described in section 667.5(c)), has a prior felony conviction in another jurisdiction for an offense with all the elements of one of those felonies, is required to register as a sex offender, or receives an enhancement under section 186.11. Penal Code section 17(b) lists when an either-way offense becomes a misdemeanor for all purposes, such as when the court grants probation and declares it a misdemeanor, or when the prosecutor files it as a misdemeanor and the defendant does not object.

Shoplifting under section 459.5

Proposition 47 added section 459.5 in 2014. It begins "Notwithstanding Section 459," and reads in part:

"shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary."

Shoplifting "shall be punished as a misdemeanor," except that a person with certain prior convictions listed in the section may be punished under section 1170(h). Subdivision (b) controls how it is charged:

"Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."

An entry into a store after hours, or with intent to steal more than $950 worth of property, stays in burglary territory under section 459.

Related sections

• Penal Code section 460. First and second degree. Official text.
• Penal Code section 461. Punishment. Official text.
• Penal Code section 459.5. Shoplifting. Official text.
• Penal Code section 462. Limits on probation for burglary of an inhabited dwelling. Official text.
• Penal Code section 1192.7. Subdivision (c)(18) lists first-degree burglary as a serious felony. Official text.
• Penal Code section 1170. Subdivision (h) on county jail felony terms. Official text.
• Penal Code section 211 (robbery). A different crime: taking property from a person by force or fear, rather than entering a place with intent. See our PC 211 explainer.

Other statute explainers are collected in our statutes library.

Recent changes

The official history note for section 459 reads: "Amended by Stats. 2025, Ch. 533, Sec. 1. (AB 468) Effective January 1, 2026." The note does not describe what the amendment changed. The text quoted on this page is the version published on the Legislature's site as of October 20, 2026.

What happens after an arrest for 459 PC

A "459" on a booking record is the arresting agency's charge. The prosecutor decides whether to file burglary, shoplifting, a theft charge, or nothing, and, for second degree, whether to file it as a misdemeanor or a felony. The first court appearance, the arraignment, is where the filed charges are read.

Our California charge code lookup explains other booking codes, What Happens After You Get Arrested walks through booking, release, and arraignment, and California theft laws covers the theft offenses that burglary is built on.

Disclaimer

This page explains what California Penal Code section 459 and the related sections quoted here say, as published on official state sources and checked on October 20, 2026. It is general legal information, not legal advice, and it does not create an attorney-client relationship. The degree charged, the place entered, and the value involved can each change the outcome, so anyone facing a burglary charge should speak with a criminal defense lawyer licensed in California.

Last updated: October 20, 2026.

Frequently Asked Questions

Is burglary a felony in California?

First-degree burglary is punished by state prison for two, four, or six years under section 461(a). Second-degree burglary can be a misdemeanor or a felony, because section 461(b) allows county jail for up to one year or imprisonment under section 1170(h).

What is the sentence for first-degree burglary in California?

Penal Code section 461(a) provides state prison for two, four, or six years. The section offers no county jail alternative for first degree.

What makes burglary first degree in California?

Under section 460, burglary of an inhabited dwelling house, an inhabited vessel designed for habitation, a floating home, a trailer coach, or the inhabited portion of any other building is first degree. Inhabited means currently used for dwelling, whether occupied or not.

Is breaking into a car burglary in California?

Section 459 covers a vehicle as defined by the Vehicle Code only when the doors are locked. A car is not on the first-degree list in section 460, so a car burglary is second degree.

Does something have to be stolen for a burglary charge?

No. CALCRIM No. 1700 tells jurors the defendant does not need to have actually committed the theft or felony, as long as the defendant entered with the intent to do so.

What is the difference between burglary and shoplifting in California?

Section 459.5 defines shoplifting as entering a commercial establishment during regular business hours with intent to steal property worth $950 or less. That conduct must be charged as shoplifting, not burglary. Any other entry into a commercial establishment with intent to commit larceny is burglary.

Does reaching through a window count as entering?

CALCRIM No. 1700 includes optional language that a person enters a building if some part of the body, or an object under the person's control, penetrates the area inside the building's outer boundary, which includes the area inside a window screen.