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San Luis Obispo Breaking And Entering Attorney


California Penal Code 459: Breaking and Entering Defense Attorney

Visitors come from across the country to savor the region’s year-round sunshine and temperate climate. In fact, San Luis Obispo’s unique weather is the secret behind the world-class Pinot Noir and Chardonnay. Wine, clear roads, and spaced out neighbors may sound like a great escape from the heavier populated cities nearby, but it does make the city a target for “breaking and entering”. 

Under California Penal Code 459, “breaking and entering” commonly referred to as burglary, is a felony. Burglary is the entering of another person’s residential or commercial dwelling with intent to commit theft or a felony. Although this crime is commonly referred to as breaking and entering, forced entry, or breaking, these actions are no longer necessary for you to be convicted of burglary in California.

If you have been arrested for “breaking and entering”, it does not mean that you are guilty. It’s important to vigorously fight a “breaking and entering” charge because a criminal conviction will stay on your record and can adversely affect job and educational opportunities down the road.

A former Prosecutor for the District Attorney’s Offices in Santa Barbara and San Diego Counties, Sanford Horowitz and his legal team will offer you a free consultation, investigate the evidence against you, and recommend practical steps to achieve the best possible results in your case.


Modern day statutes have changed a number of the aspects of the old common law of burglary. For example, in San Luis Obispo, burglary is defined as: any person who enters a building or structure with the intent to commit a theft or a felony.

The old common law burglary required an actual breaking into the building or structure. Today that is not a requirement, there be an actual breaking into the structure or building. Just the mere presence of an intruder on the premises is sufficient as long as the intruder’s presence was unlawful. The opening of a door or window of a dwelling is considered a “breaking” even if the door or window was unlocked or slightly open. The California law also states that constructive breaking such as by fraud, threats, or misrepresentations are also considered a breaking.

There is no requirement that there must be a forced entry into the building or structure as long as, at the time of entry, the intruder intends to commit a theft or a felony. Any portion of the body inside the structure, even momentarily, is enough to constitute entry. Even the use of a tool to gain entry is sufficient, if it is to commit the theft or felony, as well as gain entry.

The suspect entering the structure or building must have the intent to commit a theft or felony at the exact moment of entering. There does not have to be a completed theft or felony, only the intent to commit one.

The old common law required the breaking and entering to occur during the night. However, that is no longer a requirement to be guilty.

The old common law required that the burglary be the dwelling or house of another. Burglary today is not limited to the dwelling of another. In fact, burglary today includes structures such as stores, warehouses, tents, house boats, hotel rooms, railroad cars, trailer coaches, locked vehicles’, and aircrafts.


In order to be convicted of burglary in California, the prosecution must prove that the defendant:

  • “Entered” a building or premise either partially or completely; AND
  • Did so with the intent to commit theft or a felony

It is not necessary for the defendant to have “broken” into the premises nor for the defendant to have successfully completed or fully carried out the theft or felony so long as the intent can be proven.

First degree burglary refers to the entering of an inhabited structure in order to commit theft or a felony. There does not need to be anyone inside of the structure during the time that the burglary takes place. First degree burglary is a felony charge that carries severe penalties if convicted.

Second degree burglary refers to the entering of structures or other premises with the exclusion of residences. These premises could include commercial buildings, vehicles, boats, or animal pens among many others. In California, second degree burglary is a “wobbler” charge, which means that it can it can be prosecuted as either a misdemeanor or a felony.


A skilled criminal defense attorney may be able to raise several legal defenses to PC 459. Some of these defenses might include:


You have an alibi to show that you are not the person that the prosecution claims committed the burglary.


You never entered another person’s dwelling because you never crossed the structures outer boundary.


You did not intend to commit theft or any felony crime before you entered the dwelling or vehicle.


If there is a weakness or inconsistency in the evidence presented by the prosecution, your attorney may be able to challenge its validity.


If you were forced or threatened to break and enter the dwelling or vehicle, you should not be convicted of this crime.

If you are facing a charge of felony breaking and entering, Santa Barbara County defense attorney Sanford Horowitz Criminal Defense knows the law and the best strategies for your defense. We have extensive experience representing clients throughout the Buellton area and want to help you understand the charges you are facing as well as what your rights are under the law. 

If you’d like to schedule a consultation about your case, call (805) 749-5670 or fill out this contact form.

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