California Burglary Law: Penal Code 459, Degrees and Bail

Updated October 1, 2026. This California guide uses current statutes, the approved 2026 criminal jury instructions and official court guidance. It explains legal categories and practical family questions, not an individual's guilt, sentence or release eligibility.

Burglary questions at a glance

The number 459 on a booking entry is a starting point. It does not answer every question about the alleged entry, degree, punishment or release requirement.

What does Penal Code 459 require?

Penal Code 459 lists the places that can be targets of burglary. The list includes houses, rooms, apartments, stores and other buildings, along with specified tents, vessels, residential vehicles, cargo containers, locked vehicles and other places. The statute is broader than the everyday idea of someone breaking a window to steal from a house.

The 2026 CALCRIM 1700 instruction explains the central entrant questions: whether the defendant entered the relevant place and whether, when entering, the defendant intended theft or the alleged felony. It directs the jury to the instructions defining the intended offense. A vague description such as "something illegal happened" is not a substitute for identifying that offense and its required intent.

Theft includes different legal forms. The burglary instruction's materials recognize that the required theft intent is not confined to one method of physically carrying an item away. A lawyer should examine the actual theory and evidence, rather than relying on a family member's shorthand description.

Must anything actually be stolen?

CALCRIM 1700 explains that the intended theft or felony need not actually be completed if the required entry and intent are established. Leaving without property therefore does not by itself resolve a burglary allegation. Equally, a missing item does not by itself prove who entered, what the person intended then, or whether all burglary requirements are met.

Keep the allegation and proof separate. Police may recommend charges, a prosecutor may file a complaint, and a court may later decide issues about evidence or disposition. A booking label is not a finding of guilt.

How do entry and intent work?

Entry and intent belong together, but each needs examination. Useful questions include the particular boundary crossed, the person's identity and role, the sequence of events, and the alleged purpose at the relevant entry.

A whole-body entry or broken door is not always necessary

CALCRIM 1700 includes entry through a part of the body, or an object under the person's control, penetrating a building's outer boundary. Its related materials explain that the legal boundary and the type of object entry matter. This is not a rule that every object passed through any opening automatically creates burglary.

For a building allegation, the absence of a broken lock does not necessarily eliminate the charge. A person can enter through an open door with the required criminal purpose. Vehicle burglary has its own qualifications, discussed below, so the building rule should not be turned into a universal rule for every target listed in section 459.

Identify the relevant entry and when the intent existed

For the person accused of entering, the required intent must exist at the entry being alleged. That is why counsel may ask what the person planned, said or did before entering, and what original evidence supports the account.

Section 459 also includes a room within a building. The instruction's materials recognize that a later entry into a room can matter even where the person originally entered the larger building before forming the criminal intent. Saying "the decision happened after entering the house" is therefore not a complete analysis without identifying the alleged room entry and facts.

These distinctions do not let the family calculate the number of charges from a floor plan. Multiple-entry and separate-room questions require legal review of the actual allegation and relevant law. Give counsel the accurate sequence instead of assuming every movement creates a new offense or that an initial lawful visit ends the inquiry.

Permission and possessory rights require context

Permission to enter is relevant, but an invitation does not automatically defeat burglary where the person enters for a criminal purpose. CALCRIM's materials also recognize qualified consent defenses and an unconditional possessory right to enter one's own home. Those are legal questions with specific facts, not interchangeable labels.

A relationship, old key, ownership document or earlier residence should be explained accurately to counsel. A person who moved out, someone with limited permission, and someone with an unconditional right of entry may present different issues. Do not resolve a disputed right by returning to the property or disregarding an order; obtain advice about the actual circumstances.

Aiding and abetting has a separate timing question

Being near a burglary or knowing an accused person does not alone establish the other person's criminal responsibility. If aiding and abetting is alleged, the legal theory, knowledge, conduct and intent require examination.

CALCRIM 1702 specifically addresses forming the intent to assist a burglary before the perpetrator finally leaves the structure, together with knowledge of the unlawful purpose. It is used with the fuller aiding-and-abetting instruction. That timing rule should not be confused with the entrant's intent-at-entry requirement or treated as the complete test for everyone associated with the case.

What is first-degree versus second-degree burglary?

Penal Code 460 identifies first-degree burglary of the inhabited residential targets it specifies: dwelling houses, habitation-designed vessels, floating homes, trailer coaches and portions of other buildings. Other kinds of burglary are second degree. Second degree is not simply a synonym for every commercial incident, because the shoplifting rule also needs consideration.

Inhabited does not mean someone must be inside

The current section 459 definition and CALCRIM 1701 concern use for dwelling purposes, whether occupied at that moment or not. A resident being at work or away when the alleged entry occurs does not automatically turn a dwelling burglary into second degree.

The instruction also addresses former residents who moved out and do not intend to return, and areas attached to and functionally connected with a house. These distinctions make the actual residential use and layout important. Do not assume that every empty building, every garage or every structure containing personal belongings has the same degree.

Knowledge that the dwelling is inhabited is not itself an element of first-degree burglary in the instruction's materials. A claim that the person thought nobody lived there should be reviewed carefully rather than treated as an automatic answer to degree.

Current law addresses disaster-related absence and damage

Section 459's amendment effective January 1, 2026 expressly addresses a house, trailer, habitation-designed vessel or portion of a building left unoccupied solely because a natural or other disaster caused the occupants to leave. The statute treats that specified situation as continuing dwelling use. It also states that disaster damage, or its extent, does not preclude conviction.

This is different from assuming every damaged or vacant structure remains inhabited forever. Identify the actual prior use, reason for absence and statutory conditions. The historical date on an article or an old description of a property is not the current rule for a new allegation.

How is burglary different from other property offenses?

Everyday descriptions such as theft, break-in and robbery often overlap in conversation. The legal elements differ, and more than one allegation may arise from an incident. The following is an orientation, not a complete charging or sentencing analysis.

Penal Code 484 includes several theft forms. Section 211 defines robbery through the taking, possession, immediate-presence and force-or-fear requirements. Burglary is not automatically robbery merely because someone calls it a break-in.

The $950 shoplifting rule has several conditions

Penal Code 459.5 defines shoplifting as entering a commercial establishment during regular business hours with intent to commit larceny where the property taken or intended to be taken does not exceed $950. The statute requires an act meeting that definition to be charged as shoplifting and prohibits also charging burglary or theft of the same property when the person is charged with shoplifting.

The value limit is one part of the definition. It does not mean every entry involving less than $950, including a residential entry or a commercial entry outside regular business hours, must be treated as ordinary misdemeanor shoplifting. Identify the place, hours, intended conduct and supported value together.

Section 459.5 also specifies prior-record exceptions to its ordinary misdemeanor punishment. Separately, Penal Code 666.1 addresses a new petty theft or shoplifting conviction with two or more qualifying prior convictions; burglary is among its listed prior offenses. It also requires individualized judicial review before release after an arrest under that section.

Those provisions do not convert every new burglary allegation into a prior-theft case. The petty theft with a prior guide explains the fuller distinction between prior-theft laws. For this guide, the useful step is to identify the actual current charges and any specifically alleged priors.

What about entry into a vehicle?

Section 459's ordinary vehicle language includes the locked-door condition. Its jury-instruction materials also address the need for evidence of forced entry and the actual way entry occurred, rather than treating any theft from any car as burglary. Other listed targets, including residential vehicles and cargo containers, have their own wording.

Penal Code 465, effective January 1, 2025, separately addresses forcible vehicle entry with theft or felony intent. It defines forcible entry by specified lock-manipulation or exterior-damaging means. CALCRIM 1705 explains that provision's entry and intent elements. The statute prohibits conviction under both section 465 and section 459, and the instruction's materials apply that rule to the alternative auto-entry charges.

These provisions are reasons to read the actual charge document and evidence. A witness saying "the car was broken into" does not by itself tell the family which statute was filed, whether its elements are proved, or the applicable release requirement.

What penalties can a burglary conviction carry?

Penal Code 461 provides the base custody alternatives. The following does not add other charges, enhancements, prior-record consequences or the court's other lawful disposition choices into an individual's sentence.

For the misdemeanor row, Penal Code 18.5(a) qualifies section 461(b)'s one-year county-jail wording, reducing the maximum to 364 days. This is not a 364-day cap on the separate felony 1170(h) terms.

Penal Code 17 supplies the classification rules relevant to a wobbler offense. Section 1170(h) supplies the ordinary felony term where none is specified and the placement exceptions. Read the actual filing and court disposition rather than assuming the degree alone fixes every outcome.

Probation is a qualified sentencing question

Penal Code 462 restricts probation for burglary of the residential premises listed there, allowing it in unusual cases where the interests of justice would best be served and requiring reasons on the record. This is not a universal statement that probation is impossible for every burglary, or that a particular person will qualify.

Counsel should identify the actual eligibility rules, record and available dispositions. Pretrial release on bail is also different from probation after a conviction; permission to remain out of custody while a case proceeds does not decide sentencing.

Serious and violent classifications are not identical

Penal Code 1192.7(c)(18) lists first-degree burglary as a serious felony. Section 667.5(c)(21) separately includes first-degree burglary as a violent felony when another person other than an accomplice was present in the residence and that circumstance is charged and proved.

An inhabited dwelling can be empty at the time, so the basic degree question and that presence allegation are different. Other facts or allegations may also matter. These designations can affect sentencing and court release procedures; a general guide should not assign a complete exposure calculation from one booking label.

What happens after an arrest or filed charge?

The California Courts filing guide explains the prosecutor's review of law-enforcement material and the decision whether and what charges to file. A police recommendation, booking description and filed complaint are not the same document.

At arraignment, the court explains the charges and rights, addresses representation and pleas, and makes applicable custody or release decisions. A defendant unable to afford counsel can ask about appointment through the court's process. Obtain legal advice before a plea decision.

During the pretrial stage, evidence is shared, legal motions may be considered and the parties may discuss a possible agreement. A felony preliminary hearing generally screens whether sufficient evidence supports moving forward; it is not itself a decision of guilt. The actual case may not follow every step in a general overview.

Keep evidence and legal questions organized

Useful material for counsel may include the original complaint and notices, lawfully held video or photographs, communications, relevant access or residence records, and an accurate sequence of events. Identify what you personally know, what someone told you and what a document actually says.

Preserve original material without editing it to suggest a different event. Do not coordinate accounts, contact witnesses to influence them or publish private case details. If an order limits contact or access to property, follow it and ask counsel about any necessary lawful way to obtain information.

The questions for legal review can include identification, the statutory target and boundary, the time and nature of intent, actual possessory rights, dwelling use, shoplifting conditions and the specifically alleged additional facts. These are subjects for examination, not a menu guaranteeing dismissal.

How does bail work for a burglary allegation?

California does not provide one statewide dollar amount that applies to every section 459 allegation. Penal Code 1269b describes authorized bail acceptance under the applicable warrant, county schedule or judge's decision. State law governs that process even though county schedules and actual orders differ.

Confirm the correct facility and person, the degree and all current charges, any separate holds, and the current release instructions. If section 666.1 is also involved, its separate judicial-review requirement needs attention. Do not replace the current record with an old amount from a burglary article or assume every charge can be handled before the person sees a judge.

Penal Code 1275 identifies judicial considerations including public protection, seriousness, the prior criminal record and appearance likelihood, with public safety primary. It also contains a particular rule for reducing scheduled bail for serious or violent felony charges. Counsel and the court address the actual legal release question.

When a commercial bond is appropriate, a licensed team can explain the proposed agreement and coordinate the supported steps for the confirmed requirement. The full bail amount, agreed premium, starting payment, collateral and possible later responsibility are different categories. The bail cost guide develops that comparison without a universal price quotation.

Acceptance of a bond for one offense does not show that every separate custody matter is resolved. Confirm the facility's actual release status and keep the current appearance instructions. Release does not dismiss the burglary allegation or remove written conditions.

Three hypothetical situations

These examples illustrate questions to clarify. They are not client stories or predictions of a charging, sentence or release outcome.

A residence is empty during a workday

A family hears that nobody was home and assumes the allegation must be second degree. The dwelling's actual use is a different question from whether someone was present. Counsel needs the residence facts and any specifically charged presence allegation; the family should not collapse the degree and violent-felony tests.

A person originally entered for a lawful visit

An account says the person formed a theft intent after entering a building. That timing matters, but counsel also needs to identify any later alleged entry into a room and the purpose then. The account should describe the actual sequence rather than declaring the first entrance decides every legal issue.

Relatives receive conflicting charge descriptions

One person sees a burglary booking entry while another hears that the incident concerned an open store and low-value property. Obtain the actual complaint and current custody record. Counsel can review the shoplifting conditions and any alleged priors; the licensed team can address the confirmed bond question. Neither an everyday label nor one dollar figure supplies the whole answer.

What families should do

1. Confirm the person and current facility. Have a name, date of birth, known county or jail, and any booking or case reference available through an appropriate private channel.
2. Separate arrest and filing records. Identify the actual complaint, degree, other charges and specifically alleged priors or circumstances.
3. Bring accurate material to counsel. Preserve original evidence and relevant lawful access or residence records without editing accounts or breaching orders.
4. Confirm the current release requirement. Ask about the applicable court decision, schedule, judicial-review requirement and separate holds.
5. Understand the proposed agreement. Identify who is signing, paying or providing security. The cosigner guide explains that separate responsibility.
6. Keep court dates and conditions current. Plan transport, reminders and a private place for notices. A changed charge description is not proof a hearing disappeared.
7. Ask for help with an incomplete packet. You can begin the inquiry with what you have; the bond preparation guide explains the fuller document conversation.

Frequently asked questions

Is burglary always a felony in California?

First-degree burglary has the state-prison punishment prescribed by section 461. Second-degree burglary has misdemeanor and felony alternatives, with classification governed by the actual filing and Penal Code 17 rules. Do not assume every second-degree allegation is a misdemeanor or that one label fixes the final disposition.

Does the person have to break a building's door or window?

Not in every building burglary. The relevant entry and criminal intent can exist without a broken lock. Vehicle entry has additional qualifications, so use the actual target and charged statute rather than applying one building example everywhere.

Is a home still inhabited when the resident is away?

Inhabitation concerns dwelling use, not simply someone being inside at the alleged entry. Current section 459 also addresses specified disaster-caused absence. Evidence that someone moved away permanently presents a different question from a workday absence or qualifying evacuation.

Does taking less than $950 make every allegation shoplifting?

No. Section 459.5 includes commercial establishment, regular business hours, intended theft and value conditions together. Residential entry or another intended felony is not converted to ordinary shoplifting by that amount alone. Prior-record provisions can also affect consequences.

Can burglary be alleged if nothing was taken?

The intended theft or felony need not be completed if the required entry and intent are established. That does not relieve the prosecution of proving those requirements. Counsel should examine the actual entry and intent evidence rather than treating missing or recovered property as the whole case.

Does owning the property automatically defeat burglary?

The instruction's materials distinguish unconditional possessory entry rights from limited permission or other arrangements. Ownership, residence, family relationships and orders need careful factual and legal review. Do not assume a label alone authorizes entry or settles the charge.

Is every first-degree burglary a violent felony?

First-degree burglary is listed as a serious felony. Section 667.5(c)(21)'s particular violent-felony rule additionally requires another person other than an accomplice present in the residence, charged and proved. Other alleged facts can matter, so have counsel identify the actual classification basis.

Does posting a bond end the case?

No. A release arrangement addresses the applicable custody and appearance requirement; it is not a dismissal or sentencing decision. Keep the current court dates, written conditions and bond agreement available after release.

Why we publish this guide

Families benefit from understanding which questions concern legal proof, which concern the current custody record, and which concern a proposed bond agreement. This guide supports accurate questions and organized next steps. It is general California information, not legal advice or a judgment about an individual person.

Sources and further reading

California statutes

• Penal Code 459, 460, 461 and 462: targets, intent, degrees, punishment and qualified probation restrictions.
• 459.5, 465, 484 and 211: shoplifting, vehicle entry, theft and robbery distinctions.
• 17, 18.5, 1170, 1192.7 and 667.5: classification, the county-jail maximum, custody placement and serious/violent designations.
• 666.1, 1269b and 1275: particular prior-theft and current release questions.

Jury instructions and court process

• Approved 2026 CALCRIM book: instructions 1700, 1701, 1702, 1703 and 1705 on burglary, degrees, aider intent, shoplifting and vehicle entry.
• California Courts: charges filed, arraignment and pretrial activities.