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Commercial Burglary Law & Defense

Penal Code 459


The crime of commercial burglary is found at California penal code section 459, or simply PC 459. Commercial burglary is sometimes referred to as second degree burglary.


PC 459 may be charged as a misdemeanor or as a felony in California. Whether or not the District Attorney files misdemeanor or felony commercial burglary charges depends on several factors, including the defendant's criminal history, the sophistication of the burglary, the amount stolen, etc.


In order to prove the crime of second degree commercial burglary under PC 459 the District Attorney must prove that the defendant:

  • Entered a store, building, or structure, (but not a home)
  • With the intent to commit theft inside once.
  • Theft is defined as taking property without consent or legal justification with the intent to permanently deprive the owner of the property.

The intent to commit theft must have occurred before the defendant entered the store, building, or structure in order for the district attorney to prove second degree commercial burglary.


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 never actually steals anything; however, without taking anything there is usually very little evidence to prove PC 459.


Defenses to PC 459 Burglary

Probably the most common defense to a charge of commercial burglary (PC 459) is insufficient evidence to prove that the defendant formed the intent to steal before he entered the store, building, or structure.


This is especially true if the defendant has money or credit cards on him when he is apprehended inside a shopping store (i.e. Walmart, Costco, Target, KMart, Mall, Fair, Supermarket, etc.).


The fact that a person accidentally walks out of a store with merchandise does not equal commercial burglary under PC 459. The defendant must have intended to steal property from the store before he entered the store. Even if the defendant forms the intent to steal merchandise after he is in the store the defendant will not have committed commercial burglary because he did not form the intent to steal until after he was in the store. In that situation, a theft charge might be proper if the district attorney can prove the intent to commit theft, but not a burglary charge, which is usually a more harsh crime to have on your criminal record.


It is important to remember that if you are apprehended for a violation of commercial burglary (PC 459) you should absolutely not speak to store authorities or the police.


In most cases, the defendant's own statements becomes the best evidence against the defendant. This is because it is often times difficult to determine when the defendant formed the intent to steal merchandise or property (whether before he entered the store or after he entered the store) without the defendant's own statements.


Of course, if the defendant has no money on him at the time he is apprehended for commercial burglary, or if he has a criminal history of commercial burglary, it could be more difficult to defend against PC 459 charges, even if the defendant has not made any statements.


Other common defenses to commercial burglary (PC 459) include: statute of limitation, intoxication, insanity, mistake of fact, and more.


Sentence for PC 459 Convictions


Commercial burglary is not considered a serious or violent crime, even when PC 459 is charged as a felony. When commercial burglary is charged as misdemeanor the defendant may face up to one year in jail. When charged as a felony, the defendant may face up to three years in prison. Felony charges are likely when the amount stolen is more than $950 dollar.


It some cases it may be possible to have the PC 459 charges dismissed or reduced. This largely depends on the facts, available defenses, and the criminal history of the defendant.


In addition to possible jail time, if found guilty of PC 459 (commercial burglary), the defendant will likely be ordered to pay restitution.


Furthermore, PC 459 charges are considered crimes of moral turpitude (bad intent crimes), which means that the defendant could face possible professional license restrictions (such as doctors, dentists, lawyers, etc.), and persons who are not citizens of the United States may face possible deportation from the U.S.


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



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Penal Code 459: Commercial Burglary

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PC 459: Commercial Burglary

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PC 459 Commercial Burglary & Related Theft Crimes

  • Shoplifting PC 459.5
  • Residential Burglary PC 459 & 460
  • Theft PC 484
  • Credit Card Theft PC 484e
  • Elder Theft PC 368
  • Identity Theft PC 530.5
  • Check Fraud PC 476
  • Embezzlement PC 503
  • False Personation PC 529
  • Receipt of Stolen Property PC 496(a)
  • Theft by False Pretenses PC 532
  • Welfare Fraud WI 10980
  • Forgery PC 470(a)
  • Forged Driver's License PC 470
  • Counterfeiting PC 350, 477, & 478
  • Vehicle Theft VC 10851(a) & 487(d)

PC 459 Second Degree Commercial Burglary


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