--- title: "PC 459 / 459.5 - Burglary & Shoplifting" description: "California PC 459 covers burglary; PC 459.5 covers shoplifting under $950. See the elements, penalties, and key differences." url: "https://www.thehfirm.com/penal-codes/pc-459-459-5-burglary-shoplifting" site: "H Law Group" --- # PC 459 / 459.5 - Burglary & Shoplifting California PC 459 covers burglary; PC 459.5 covers shoplifting under $950. See the elements, penalties, and key differences. Topics: Theft, Penal Code ## **California Penal Code 459 & 459.5: Burglary and Shoplifting** Burglary and shoplifting both involve entering a space with the intent to steal, but Proposition 47 split them into two very different charges depending on when the location is open for business and how much the intended theft is worth. Getting this distinction right can be the difference between a felony wobbler and a straightforward misdemeanor. ## **What the Law Says** Penal Code 459 defines burglary broadly, covering entry into a long list of structures and vehicles: > Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel... floating home... railroad car, locked or sealed cargo container... trailer coach... any house car... inhabited camper... vehicle... aircraft... or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. Unlike the common understanding of the word, PC 459 burglary does not require breaking anything. Walking through an open, unlocked door is enough, as long as the person had the intent to commit theft or a felony at the moment of entry. Penal Code 460 divides burglary into two degrees, and Penal Code 461 sets the punishment for each. Penal Code 459.5 carves shoplifting out of the burglary statute for lower-value thefts from open businesses: > Shoplifting occurs when someone enters a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). The statute also specifies that any conduct meeting this definition must be charged as shoplifting. A person charged with shoplifting cannot also be charged with burglary or theft for the same property, which prevents prosecutors from stacking charges for the same low-value incident. ## **Elements Prosecutors Must Prove** For burglary under PC 459, the prosecution must show: - The defendant entered a structure, vehicle, or other location covered by the statute - At the moment of entry, the defendant intended to commit theft or any felony once inside For shoplifting under PC 459.5, the prosecution must show: - The defendant entered a commercial establishment while it was open during regular business hours - At the time of entry, the defendant intended to commit larceny - The value of the property taken or intended to be taken did not exceed $950 ## **Degrees, Charging, and Strike Consequences** Penal Code 460 splits burglary into first and second degree. Burglary of an inhabited dwelling house, an inhabited vessel or floating home, an inhabited trailer coach, or the inhabited portion of any other building is first degree burglary. Every other burglary is second degree. First degree burglary is always a serious felony under Penal Code 1192.7(c), which means it counts as a strike. It also qualifies as a violent felony strike under Penal Code 667.5(c) when the prosecution charges and proves that another person, other than an accomplice, was present in the residence during the burglary. Shoplifting under PC 459.5 is a misdemeanor, with one exception: a person with certain prior convictions for serious or violent felonies, or who is required to register as a sex offender, can be charged as a felony under Penal Code 1170(h). ## **Penalties** - **Second degree burglary: **up to one year in county jail, or a felony sentence under Penal Code 1170(h) (16 months, two years, or three years), since it is a wobbler - **First degree burglary: **two, four, or six years in state prison; there is no misdemeanor option - **Shoplifting: **a misdemeanor, punishable under California's general misdemeanor statute, Penal Code 19, by up to six months in county jail, a fine of up to $1,000, or both, unless the defendant has a qualifying prior conviction that allows felony charging ## **Common Defenses** - No intent to commit theft or a felony existed at the moment of entry, which defeats burglary regardless of what happened afterward - The person had permission or a legal right to enter - Mistaken identity, particularly in shoplifting cases built on store security footage or loss-prevention staff identification - The value of the property involved was misjudged, which can move a case from felony burglary exposure to misdemeanor shoplifting or vice versa - Insufficient evidence connecting the defendant to the entry or the intent element ## **Related Offenses** - [**Receiving Stolen Property**](/penal-codes/pc-496-receiving-stolen-property)[ - Penal Code Section 496](/penal-codes/pc-496-receiving-stolen-property) - [**Petty Theft**](/penal-codes/pc-484-488-petty-theft)[ - Penal Code Sections 484 and 488](/penal-codes/pc-484-488-petty-theft) - [**Forgery and Identity Theft**](/penal-codes/pc-470-530-5-forgery-identity-theft)[ - Penal Code Sections 470 and 530.5](/penal-codes/pc-470-530-5-forgery-identity-theft) ## **Frequently Asked Questions** ### Can shoplifting be charged as burglary in California? Not for conduct that meets the definition of shoplifting under PC 459.5. The statute requires that qualifying conduct be charged as shoplifting, not burglary or theft, for the same property. ### Do I have to break something to be charged with burglary? No. PC 459 only requires entering a covered structure or vehicle with the intent to commit theft or a felony. Walking through an unlocked door with that intent is enough. ### Is burglary always a felony? First degree burglary of an inhabited dwelling always is, with no misdemeanor option. Second degree burglary is a wobbler, meaning it can be charged as either a misdemeanor or a felony. ### What is the dollar threshold for shoplifting versus burglary? Shoplifting applies when the property taken or intended to be taken during regular business hours is valued at $950 or less. Above that threshold, or outside of regular business hours, the conduct can be charged as burglary instead. Whether a case is charged under [Penal Code 459](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=459.&lawCode=PEN) or Penal Code 459.5 often comes down to the value of the property and whether the business was open, and that distinction has a major effect on the potential penalties. This is general information, not legal advice for any specific situation, and anyone facing a burglary or shoplifting charge should speak with a criminal defense attorney about the facts of their case. ## Related California penal codes - [PC 496 - Receiving Stolen Property](https://www.thehfirm.com/penal-codes/pc-496-receiving-stolen-property) - [PC 484 / 488 - Petty Theft](https://www.thehfirm.com/penal-codes/pc-484-488-petty-theft) - [PC 470 / 530.5 - Forgery & Identity Theft](https://www.thehfirm.com/penal-codes/pc-470-530-5-forgery-identity-theft) --- ## Contact H Law Group - Phone: (888) 499-4948 (phones answered 24/7) - Email: info@thehlawgroup.com - Free consultation: https://www.thehfirm.com/free-consultation - Contact form: https://www.thehfirm.com/contact-us ### Offices - Los Angeles Branch: 714 W Olympic Blvd Ste, 803, Los Angeles, CA 90015 -- (213) 985-4431 - San Diego Branch: 600 W Broadway, Suite 700, San Diego, CA 92101 -- (619) 716-0968 - San Jose Branch: 333 W San Carlos St, San Jose, CA 95110 -- (408) 869-6572 - Orange County Branch: 2030 Main St, # 1300, Irvine, CA 92614 -- (949) 832-8057 - Riverside County Office: 41593 Winchester Rd, Suite 200, Temecula, CA 92590 -- (951) 418-3576 - Santa Barbara Branch: 1117 State St, Santa Barbara, CA 93101 -- (888) 499-4948 ### Disclaimer This website provides general legal information only and does not create an attorney-client relationship. For legal advice about your specific situation, contact H Law Group directly.