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Burglary (Second Degree) Law & Defense

PC 459

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Information on the crime of burglary in the second degree (also called commercial burglary) is found at California penal code section 459. For information on burglary in the first degree (also called residential burglary) please visit PC 459/460(a)).

 

PC 459 Law (Abbr.)

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PC 459: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, locked vehicle, or mine, with intent to commit grand or petit larceny, or any felony therein, is guilty of burglary.

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PC 460(a): If the burglary is a house then the burglary is in the first degree. Every other burglary is burglary in the second degree (PC 459(b)).

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In order to prove the crime of second degree commercial burglary the District Attorney must prove that the defendant:

  • Entered a store, building, or structure, (not a home)
  • With the intent to commit theft inside.

To enter a store or building means to intrude into the threshold of the property, no matter how slight, whether by force or no force at all. Entrance into a store may also be accomplished by object, such as a stick or device used to retrieve property from the store or building.

Intent means to do something on purpose. In other words, in order to prove burglary the district attorney must prove that the defendant specifically meant to commit theft before entering a store or building. For example, if the defendant enters a store with the intent to make a valid purchase, but thereafter decides to steal an item, then the crime of shoplifting, not burglary, has been committed.

Theft is defined as the taking of property without consent or legal justification from the true owner of the property and with the intent to permanently deprive the true owner of the property (For further information on the definition of theft please see Theft Crimes).

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Note: The defendant commits commercial burglary the very instant he or she enters the store, building, or structure, if he or she enters the store with the intent to commit theft. It does not matter if the defendant accomplishes the theft; however, without taking anything there is usually very little evidence to prove PC 459 charges.

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Sentence for Burglary (PC 459)

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PC 459 Sentence: Burglary in the second degree may be charged as a felony or as a misdemeanor (a wobbler offense). When burglary is charged as a misdemeanor the defendant may face up to one year in jail. When burglary is charged as a felony the defendant may face up to three years in prison.

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Note: Felony charges are more likely to be charged when the amount stolen is more than $950 dollars, when the defendant has a criminal record, or when the the crime is committed with sophistication.

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PC 664/459 Attempt Burglary: Attempted burglary is charged as PC 664/459. Attempted burglary may be charged as a misdemeanor or as a felony. Misdemeanor attempted burglary has a maximum jail sentence of 180 days. Felony attempted burglary has a maximum jail sentence of 18 months in jail or prison.

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Probation Sentence: Probation is period of supervision instead of jail. Probation sentences come with probation terms that must be followed to avoid further punishment, including actual jail or prison. Probation for felony burglary convictions is called formal probation where the defendant is monitored by a probation officer. Probation for misdemeanor burglary convictions called informal or court probation and it is not monitored by a probation officer. Probation sentences are available in PC 459 cases but every case is decided on a case by case basis. Whether or not probation is available as a sentence in a commercial burglary case depends largely on the facts of the case and the defendant's criminal history.

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Suspended Prison Sentences: A suspended prison sentence is a sentence that is not served unless the defendant violates the terms of his or her probation. Probation sentences do not have to come with suspended sentence but it is fairly common in burglary cases where the defendant receives a probation sentence. Split prison sentences may also be available in some burglary cases. Split prison sentences are sentences that are served partially in prison and partially out of prison on work release or electronic monitoring. For more information on suspended or split prison sentences please see PC 1170(h) sentencing.

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Good Behavior Credits: If the defendant serves any time in jail or prison for a second degree burglary conviction he or she is entitled to fifty percent (50%) credit off his or her jail or prison sentence for good behavior while in custody.

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Crime of Moral Turpitude: Burglary is considered a crime involving moral turpitude. This means that burglary is considered to be morally wrong. Crimes of moral turpitude carry extra punishments for non-U.S. citizens and licensed professionals. Non-U.S. citizens may be deported or denied reentry into the United States for committing the crime of burglary. Professionally licensed persons, such as doctors, lawyers, dentist, nurses, teachers, etc., may be disciplined by their respective licensing agency (Board, Bar, Commission), for committing the crime of burglary. For more information on the consequences for PC 459 charges as they relate to non-citizens and professionals see immigrants or professionals.

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Three Strikes Law: Burglary in the second degree (PC 459) is not a serious or violent crime under California's Three Strikes Law; therefore, commercial burglary is not a strike offense.

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Collateral Punishment: In addition to a possible jail or prison sentence, if found guilty of commercial burglary in the second degree (PC 459) the defendant could suffer any of the following punishments: deportation for defendants who are not citizens of the United States, revocation or suspension of a professional license, court fees and penalty fines, civil lawsuits from victims, restitution orders, restraining orders, loss of civil rights (including the right to own or possess firearms for felony convictions of PC 459, and more.

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Defenses to PC 459 Burglary Crimes

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Common defenses to a charge of commercial burglary in the second degree include: insufficient evidence to prove that the defendant formed the intent to steal before he entered the store, building, or structure, mistake of fact (or accident), claim of right, intoxication, insanity, coerced confessions, illegal search and seizure, statute of limitations, necessity, and more.

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For information on common defenses, including the defenses to the crime of burglary, please visit defenses.

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If you are charged with second degree commercial burglary, or PC 459, contact our criminal defense attorneys without delay for a free consultaiton. Our criminal defense attorneys will patiently explain your rights and defenses. Call today!

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909.913.3138

Criminal Defense Attorneys

909.913.3138

Penal Code 459: Commercial Burglary

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Crimes Related to Burglary Second Degree (PC459-M)


 
 
 
 
 
 

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