Residential Burglary Law & Defense
PC 460(a) & 459 Crimes
Information on the crime of residential burglary, also known as first degree burglary, can be found at California penal code sections 459 & 460(a). Residential burglary is often charged with the two code sections together as PC 459/460(a). For information on the crime of commercial burglary (also known as second degree burglary), please visit commercial burglary.
PC 460(a): Every burglary of an inhabited dwelling house or vessel, or the inhabited portion of any other building, is burglary of the first degree (PC 460(a) Abbr.).
Inhabited means currently being used for dwelling purposes, whether occupied or not.
In order for the district attorney to prove that the defendant is guilty of first degree residential burglary under PC 459/460(a), the district attorney must prove the defendant:
Entered a home, or a room within a home, and
When the defendant entered the home he or she intended to commit a felony or theft inside
For example, if the defendant enters a home with the intent to steal a baseball cap (a misdemeanor theft crime), or enters a home with the intent to commit the crime of rape (a felony), then the defendant may be charged with residential burglary under PC 459/460(a) for either crime. The theft crime does not have to be a felony theft crime.
Note: The intent to commit theft or a felony inside a residence must be formed before the defendant enters the residence under residential burglary law. For example, if the defendant breaks into a home to get out a storm (no intent to commit theft or a felony inside the home), and thereafter, the defendant decides to steal property in the home, then the defendant should not be charged with residential burglary because he or she did not have the intent to commit theft or a felony before he or she entered the home.
Breaking defined: Burglary is often referred to as breaking and entering, but this reference is misleading. To break into a home or residence does not require actual breaking of some part of the property, such as a door or window. . If the defendant simply opens a door that was not already opened in order to gain access to a home the crime is complete, so long as the requisite intent to either commit a theft or felony is also present.
Entering defined: As soon as the defendant enters the residence with the intent to commit a theft, or enters the residence with the intent to commit a felony within the residence, the crime is complete. But what is entering? The law is that any intrusion by force, into a residence, no matter how slight the intrusion is, or how slight the amount of force used, constitutes entering a residence.
In addition, even if a defendant does not enter any part of his or her body into the home or residence, a residential burglary may still be committed if the defendant used an object to enter the home. For example, a robot with a camera or a long stick used to collect an object through a window is considered a residential burglary (PC 459 or 460).
Important: No actual felony or theft needs to be committed in the residence for the crime of first degree burglary to be complete. So long as the defendant intended to commit a theft or a felony inside the residence before he or she enters the residence the crime is committed.
For example, if the defendant enters a home with the intent to commit a rape in the home, but the woman that the defendant intended to rape was not home at the time, the act of the defendant entering the home, coupled with the defendant's intent to commit the crime of rape (a felony), is considered a first degree residential burglary even though the defendant never accomplished the target crime of rape (PC 460).
Where the defendant tries to break into a home or residence and the defendant is unsuccessful, either because he or she is caught before entering the home, or because he or she could not actually get into the home, the defendant may be charged with attempted residential burglary (PC 664/460(a)).
Prison Sentence: First degree residential burglary is charged as a felony. The maximum prison sentence for first degree burglary is six years in prison (PC 460(a). Attempted Residential Burglary is charged as a felony. The maximum sentence for attempted first degree burglary is three years in prison
Burglary & Target Crime Charged: When the defendant enters a residence to commit theft or a felony inside the residence the crime of burglary is complete. Therefore, if the defendant actually commits the theft or a felony inside the residence after entering then he or she may be charged with that crime as well. For example, if the defendant enters a residence with the intent to steal a purse, and the defendant actually steals the purse, then the defendant may be charged with residential burglary and the theft of the purse as two different crimes.
Good Behavior Credits: If the defendant is sentenced to prison for residential burglary, and the defendant has not previously been convicted of a strike offense, then the defendant is eligible for up to fifty percent (50%) credit off that prison sentence for good behavior while in prison (15% if a victim is home at the time of the burglary).
Probation Sentence: Probation is period of supervision with terms of probation that the defendant must obey instead of serving an actual prison sentence. A probation sentence for the crime of burglary of a residence is allowed only in unusual circumstances and is considered formal, which means that the defendant's probation is monitored by a probation officer. Some felony probation terms can include a jail sentence as a condition of probation, but jail sentences that are ordered as a condition of probation are generally much shorter than prison sentences and may be served alternatively on work release or house arrest (electronic monitoring).
Suspended Prison Sentence: First degree residential burglary does not qualify for suspended prison sentences (also called joint suspension), or split prison sentences. This means that if the defendant is found guilty of PC 459, 460, or 459/460(a), the defendant must serve either a probation sentence (see above), or an actual prison sentence, and no part of a prison sentence may be served out of prison.
Crime Involving Moral Turpitude: Burglary of a residence is considered a crime involving moral turpitude. Crimes that involve moral turpitude are crimes that are considered to be morally wrong and can carry severe collateral consequences for non-U.S. citizens and licensed professionals.
Three Strikes Law: Residential burglary is considered a strike crime under California's Three Strikes Law. Residential burglary is classified as a serious crime, but if there is a victim at home during the burglary the crime is considered both a serious crime and violent crime.
In addition to any prison sentence, criminal convictions of PC 460(a) can lead to other severe consequences such as: Immigration issues (non-U.S. citizens), probation sentence, penalty fines, lawsuits, employment loss, criminal protective orders (CPS), denial of entry into the military (Marines, Navy, Army, Air Force, etc.), and more.
Defenses: Common defenses to first degree residential burglary include: insufficient evidence to prove that the defendant entered a home or residence with the intent to commit a felony or a theft, statute of limitations, necessity, mistake of fact, insanity, intoxication, illegal search and seizure, coerced confessions, alibi, self-defense, defense of others, and more.
If you are charged with first degree residential burglary, or PC 459, 460(a), or 459/460(a), contact our criminal defense attorneys without delay to learn your rights and defense options. Call today!
Quick Legal Reference
Crime: Residential Burglary
Code: PC 459/460(a) (CalCrim No. 1700)
Wobbler: PC 459/460(a) is not a wobbler. PC 460(a) is only charged as a felony.
Incarceration: PC 459/460(a) prison sentence range: 2, 4, or 6 years (if probation is not granted).
Probation: Probation is not common but may be available in special PC 459/460(a) cases. 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.
PC 1170(h)): No. PC 459/460(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: Yes. PC 459/460(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 50% good conduct credits available (unless victim is at home during burglary. If so, only 15% good conduct credits).
CIMT: PC 459/460(a) 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: PC 459/460(a) convictions prohibit a defendant from owning or possessing a firearm.
Bail: $75,000 ($125,000 if victim present during burglary) (San Bernardino County)
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