If you have been arrested for the crime of Burlgary, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.

California Penal Code 459 — Definition. “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the [California] Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of 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.”

California Penal Code 461 — Punishment. “Burglary is punishable as follows: 1. Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. 2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.”

CALJIC 14.52 Burglary; inhabited dwelling, defined. “An inhabited dwelling house is a structure which is currently used as a dwelling whether occupied or not. It is inhabited although the occupants are temporarily absent.”

California Penal Code 466 — Burglary instruments or tools. “Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the [California] Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. [Italics added] Any of the structures mentioned in [California Penal Code] Section 459 [burglary] shall be deemed to be a building within the meaning of this section.”

CALJIC 14.50 Burglary. “It does not matter whether the intent with which the entry was made was thereafter carried out.”

CALJIC 4.35 Ignorance or Mistake of Fact  “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent in this case for California burglary is not a crime. Thus a person is not guilty of a crime if he commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”

Recent Cases:


Magness v. Superior Court, C066601, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 196 Cal. App. 4th 630; 126 Cal. Rptr. 3d 318; 2011 Cal. App. LEXIS 714, June 10, 2011, Filed


Standing in the driveway of a home, with the intent to commit larceny inside, a person uses a remote control to open a garage door, but then flees before going inside the garage when the homeowner responds to the opening door. Has the person committed first degree burglary or just attempted to do so? Our answer is that under Penal Code section 459, there was no burglary, only an attempted burglary. Because that conclusion means, in this case, that petitioner Christopher Magness was held to answer for first degree burglary without probable cause, we will order that a writ of prohibition issue barring further prosecution of him for that crime.


The interest sought to be protected by the common law crime of burglary was clear. At common law, burglary was the breaking and entering of a dwelling in the nighttime. The law was intended to protect the sanctity of a person’s home during the night hours when the resident was most vulnerable. As one commentator observed: ‘The predominant factor underlying common law burglary was the desire to protect the security of the home, and the person within his home. Burglary was not an offense against property, real or personal, but an offense against the habitation, for it could only be committed against the dwelling of another. … The dwelling was sacred, but a duty was imposed on the owner to protect himself as well as looking to the law for protection. The intruder had to break and enter; if the owner left the door open, his carelessness would allow the intruder to go unpunished. The offense had to occur at night; in the daytime home-owners were not asleep, and could detect the intruder and protect their homes.


“In California, as in other states, the scope of the burglary law has been greatly expanded. There is no requirement of a breaking; an entry alone is sufficient. The crime is not limited to dwellings, but includes entry into a wide variety of structures. The crime need not be committed at night. …” People v. Davis, supra, 18 Cal.4th at pp. 720–721


People v. Lopez, H034619, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 198 Cal. App. 4th 698; 129 Cal. Rptr. 3d 583; 2011 Cal. App. LEXIS 1089, August 19, 2011, Filed


CALCRIM No. 376 “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt then you may conclude that the evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when, the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”


CALCRIM No. 376 is based on a “long-standing rule of law that allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances that tend to show guilt.” People v. Barker (2001) 91 Cal.App.4th 1166, 1173 [111 Cal. Rptr. 2d 403].


Please contact Attorney Max Gorby at (323) 477-2819 regarding any questions related to California Penal Code section  459 Burglary.