Riverside County courthouse, Riverside, California
Defending and Protecting since 2004


To be guilty of a violation of PC459, Burglary, the People must prove beyond a reasonable doubt that:

  • The defendant entered a building;
  • AND

  • When he entered the defendant intended to commit theft or any felony. CalCrim1700

The following are just a couple of examples of possible defenses to a charge of PC459, Burglary:

1. The defendant did not intend to commit a theft or felony when he entered a building.

Assume the following facts:

Tom liked to run marathons. Because he ran so many marathons, he bought running shoes often. He went online, researched and found the new pair of running shoes he wanted. Then, Tom grabbed his wallet and drove to a local shoe store to purchase the shoes. As he entered the shoe store, he intended to purchase the shoes.

Once inside the store, Tom found the shoes he wanted, and tried them on. Tom liked the way the shoes fit and decided to purchase them. As he was walking toward the cash registers Tom thought to himself, for the first time ever, that he would steal the shoes. He walked past the cash registers, out of the front doors of the store and into his vehicle. He left the location and went home.

Later that night, two police officers arrested Tom for burglary and threw him in the county jail.

Here, Tom would not be guilty of burglary. Burglary requires that a defendant has the intent to commit a felony or any theft WHEN HE ENTERED THE BUILDING. Here, Tom did not have the intent to steal the shoes when he entered the shoe store. When he entered the shoe store he intended to pay for the shoes. It was only after he was already inside the store that Tom formed the intent to steal the shoes. Therefore, Tom would not be guilty of burglary.

Tom would be guilty of theft however.

2. The defendant did not enter a building.

Assume the following facts:

Sally was walking down the sidewalk in a residential area. She noticed a beautiful jade tree in a red pot. The pot was sitting on a table that was outside and in front of the house and was just inches outside the threshold of a bedroom window of the house. A moment later, Sally saw a woman inside that bedroom reaching out of the window to water the jade tree.

Sally wanted that jade tree and pot. After the woman stopped watering the jade tree, Sally checked in all directions to make sure no one was watching. Then, slowly, Sally crept across the front lawn, crawled around a bush, reached up and quietly took the pot that was just inches outside the bedroom window of the house. Sally then carefully retraced her steps and left the scene with the pirated perennial.

Sally would not be guilty of burglary under these facts. Burglary requires that a defendant enter a building. Here, Sally never entered a building. She was very close to crossing the threshold of the window and entering the house, but she NEVER ENTERED A BUILDING when she stole the pot. The pot was outside the window. Therefore, Sally can not be guilty of burglary.

Sally would however be guilty of theft and trespass.