Criminal Defense Lawyers
Commercial Burglary Law & Defense
PC 459 & 460(b) Crimes
Information on the crime of burglary in the second degree (aka commercial burglary) is found at California penal code section 459. For information on burglary in the first degree (also called residential burglary) see PC 459/460(a)).
PC 459 Law (Abbr.)
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.
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)).
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
Entry Defined: 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 Defined: 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 defined: 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.
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.
Commercial Burglary Penalties
PC 459 Sentence: Burglary in the second degree may be charged as a felony or as a misdemeanor (a wobbler offense). When commercial burglary is charged as a misdemeanor the defendant may face up to one year in jail. When commercial burglary is charged as a felony the defendant may face up to three years in prison.
Note: Felony charges of PC 459(b) are more likely to be charged when the amount stolen from a store is more than $950 dollars, when the defendant has a criminal record, or when the the crime is committed with a high level of sophistication.
PC 664/459 Attempt Burglary: Attempted commercial burglary is charged as PC 664/459. Attempted commercial 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.
Probation Sentence: Probation is period of supervision instead of jail. Probation sentences come with probation terms that must be followed to avoid further punishment. Probation for felony burglary convictions is called formal probation where the defendant is monitored by a probation officer. Probation for misdemeanor burglary convictions is called informal or court probation and is not monitored by a probation officer. Probation sentences are available in PC 459(b) cases but every case is decided on a case by case basis. Whether or not probation is available in any commercial burglary case depends largely on the facts of the case and the defendant's criminal history.
Suspended Sentences: A suspended prison sentence is a jail sentence that is not served unless the defendant violates the terms of his or her probation. Split sentences may also be available in some burglary cases. Split jail sentences are sentences that are served partially in jail and partially out of jail on work release or electronic monitoring. Any incarceration for commercial burglary is served in a local county jail (as opposed to a state prison); this applies to both felony and misdemeanor PC 459(b) cases.
Good Behavior Credits: If the defendant serves any time in jail for a second degree burglary conviction he or she is entitled to fifty percent (50%) credit off his or her jail sentence for good behavior while in custody.
Crime of Moral Turpitude: Commercial burglary is considered a crime involving moral turpitude. This means that commercial burglary is considered to be morally wrong or involves deceit. 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 commercial burglary. Professionally licensed persons, such as doctors, lawyers, dentists, nurses, teachers, etc., may be disciplined by their respective licensing agency (Board, Bar, Commission) for committing the crime of commercial burglary.
Three Strikes Law: Commercial 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 classified as a strike offense.
Collateral Punishment: In addition to a possible jail sentence, if found guilty of commercial burglary in the second degree (PC 459), the defendant could suffer any of the following punishments: 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.
Bail: The bail schedule for commercial burglary (PC 459(b) in San Bernardino County is $5,000 for misdemeanors and $25,000 for felonies. It is possible the the court may lower or raise the defendants' bail amount in any PC 459(b) case as bail amount is within the court's discretion and depends largely on the facts of the case and the defendant's criminal history or flight risk.
Defenses to PC 45
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 or inadvertence), claim of right, intoxication, insanity, coerced confessions, illegal search and seizure, statute of limitations, necessity, and more.
If you are charged with second degree commercial burglary, or PC 459(b), contact our criminal defense attorneys without delay for a free consultation. Our highly experienced criminal defense attorneys will patiently explain your rights and defenses. Call today!
Quick Reference Sheet
Crime: Commercial Burglary
Code: PC 459 (CalCrim No. 1700 et seq.)
Wobbler: Yes. PC 459 is a wobbler crime. This means that PC 459 may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 459 jail sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation is allowed in PC 459 cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. PC 459 is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Note: Limitations may apply
Strike: PC 459 is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 459 is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 459 convictions bar defendant from owning or possessing a firearm.
Bail: $25,000 (Felony); $5,000 (Misdemeanor) (San Bernardino )
Criminal Defense Lawyers
PC 459.5 Shoplifting
PC 459/460(a) First degree burglary
PC 466 Possession of burglary tools
PC 532 Theft by False Pretenses
PC 484(a) Theft
PC 488 Petty Theft
PC 503 Embezzlement
PC 664/459 & 21a/459 Attempted Burglary