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California Residential Burglary Laws & Defense

Penal Code 459  & 460

Information on the crime of residential burglary can be found at California Penal Code Sections 459 & 460. This article is dedicated to a discussion of the law and defense as it pertains to residential burglary. For information on commercial burglary, please visit commercial burglary

In order for the district attorney to prove that the defendant is guilty of residential burglary under PC 459 or 460, the prosecutor 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 entered a home with the intent to steal a baseball cap (a theft) or entered a home with the intent to commit rape (a felony), then the defendant may be charged with residential burglary under PC 459 or 460.

As soon as the defendant enters the residence with the intent to commit a theft or intent to commit a felony within the residence, the crime is complete. Is does not matter whether or not the defendant was able to actually steal anything or commit a felony.

For example, if the defendant entered a home with the intent to commit rape, but the woman was not home, the act is still considered a residential burglary because the defendant entered the home with the intent to commit the rape (a felony) even though the defendant never actually raped anyone.

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 or 664/460). For more on the law of attempt crimes please see attempt crimes.

To break into a home or residence does not require much actual breaking. 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 could amount to residential burglary under either PC 459 or 460.

According to penal codes 459, 460, or 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 & Penalty for PC 459 & 460:

Residential burglary charges under penal code 459 or 460 can be charged as a misdemeanor or as felony. When residential burglary is charged as a misdemeanor (very unusual) the defendant could face up to a year in jail. If residential burglary is charged as a felony, the defendant could face up to six years in prison (for first degree residential burglary under PC 459 or 460 ). 

In some cases, residential burglary sentences and penalties may be reduced depending on the facts of the case and the defendant's criminal history.

Residential burglary charged under PC 459 or 460 is considered a strike under California's infamous Three Strikes Law. This means that any conviction of residential burglary under PC 459 or 460 will create greater penalties for the defendant if he or she is subsequently convicted of a new criminal offense.

Also, if the alleged victim was present at the time of the residential burglary, or if the defendant has a criminal record at the time of the offense, then he or she could face increased penalties (see PC 459, 460, and 460(a)).

Most residential burglary convictions are eligible for fifty percent good time credit upon conviction (the defendant can earn a day of jail credit for every day served so long as the defendant is on his or her god behavior at jail or prison). This computation does not apple to PC 460(a) where the defendant is charged with residential burglary while the alleged victim was present in the home.

Other aggravated factors that might lead to more jail or prison time include the time of day that the residential burglary took place, the amount of sophistication involved, the defendant's criminal history, the defendant's age, the amount stolen, if any, or the felony that was intended, the relationship of the defendant to the alleged victim, and more.

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

Defenses to residential burglary charges filed under PC 459, 460, or 460(a) 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, police misconduct which leads to the suppression of evidence, and more.

If you have been charged with residential burglary (PC 459 or 460), contact a criminal defense attorney without delay to learn your rights and options.

To learn more about the crime of residential burglary, and defenses to penal code 459, 460, and 460(a), contact our criminal defense attorneys today for a free consultation.


 Related Crimes (PC 459 & 460):

  • Burglary-1st degree penal code 459 or 460
  • Burglary-2nd  degree penal code 459
  • Burglary of inhabited dwelling house PC 460(a)
  • Commercial burglary PC 459

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Residential Burglary: PC 459 & 460

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