Penal Code (PC) sections 459, 460
Penal Code PC 459 defines "burglary" as "entering a
• structure, or
• locked vehicle
with the intent to commit a felony, (or a petty theft, a misdemeanor), once inside."
Burglary is often referred to as "breaking and entering.” But prosecutors can charge you with the more serious offense of burglary even if there is no forced entry of a room or structure. Only auto burglary requires an actual break-in.
California Penal Code PC 460 allows for first and second degree burglary.
First Degree ("residential") Burglary
First degree burglary is commonly referred to as residential burglary and is the more serious of the two types. First degree burglary is always a felony.Under Penal Code 460, you commit first degree burglary if you burgle any inhabited dwelling. An inhabited dwelling is a place where someone lives or sleeps. However, this does not mean that the specific area must be used for sleeping or everyday living. Rather, it is "whether the area is functionally interconnected to and immediately contiguous to the residence, which is used for sleeping or everyday living." Further, a dwelling is "inhabited" if it is used for dwelling purposes, whether or not it is currently occupied.
Second Degree ("commercial") Burglary
Second degree burglary, commonly referred to as 'commercial burglary', includes the act of burglary in every type of structure other than places where people live. Second degree burglary is most frequently seen in connection with Penal Code 484 "shoplifting."
Second degree burglary may be charged as a felony or a misdemeanor, at the prosecutor's discretion.
For both first and second degree burglary, the crime need not involve a literal "break-in." To be convicted of burglary in California, you need only enter a structure with the intent to commit a felony or theft therein. Only burglary of a vehicle requires an actual break-in.
Both residential burglary and commercial burglary requires an entry that invades the possessory interest belonging to another. However, the entry must be by a tool or at least some part of your body. Merely invading the "air space" of a business with some innocuous object is not enough.
First degree residential burglary is a serious crime and is always a felony. If you are convicted of first degree residential burglary, you face:
1. A maximum penalty of imprisonment in the state penitentiary. The sentence could be for two (2) years, four (4) years or six (6) years, with the length of sentence depending on the facts and circumstances of the act, the offender's past criminal history and other factors.2. Felony Probation is a very rare possibility if you are convicted of first degree residential burglary and is only done in unusual cases where the interests of justice would best be served by a grant of probation to the defendant. You are more likely to get sentenced to felony probation if you are convicted for felony, second degree burglary (See below). If you are sentenced to felony probation in California, you will have to comply with certain terms and conditions. In addition to meetings with a probation officer, these may include some time in county jail, victim restitution and community service.
Moreover, a conviction for first degree burglary counts as a strike under California Three Strikes Law.
Second Degree Burglary
As stated, second degree burglary may be charged as either a misdemeanor or a felony, depending on (1) the circumstances of the case, and (2) the offender's criminal history.
Misdemeanor second degree burglary – penalties / probation
If you are convicted of second degree burglary as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.
Alternatively, the judge might sentence you to misdemeanor ("summary" or "informal") probation. If you are sentenced to probation, you may serve little or no time in jail. You will, however, have to abide by certain conditions.
Felony second degree burglary – penalties / probation
If you are convicted of second degree burglary as a felony, you face:
1. A maximum penalty of imprisonment in the state penitentiary. The sentence could be for sixteen (16) months, two (2) years, or three (3) years, with the length of sentence depending on the facts and circumstances of the act, the offender's past criminal history and other factors.
2. Probation with up to one year county jail, OR 16 months, or two or three years in the state prison, and
3. A $10,000 maximum fine.
If you are sentenced to felony probation in California, you will have to comply with certain terms and conditions. In addition to meetings with a probation officer, these may include some time in county jail, victim restitution and community service.
Some of the reasons why the judge would approve and issue a probation sentence include (but are not limited to) the following:
• the circumstances of your burglary were less serious than "typical" burglaries,
• you only committed the burglary because you were provoked or coerced into doing so and you have no prior criminal record, or
• you have a mental health condition that would benefit from treatment if the judge ordered it as a part of your probation sentence.
Some of the reasons why the judge might deny probation include (but are not limited to):
• the circumstances of your offense showed a high level of criminal sophistication,
• you used a weapon, or
• you took advantage of a position of confidence or trust to commit the burglary.
However, under California Penal Code 462 PC, except in rare circumstances the judge may not sentence you to probation if you were convicted of burglarizing an inhabited dwelling, i.e., first degree burglary. The exception is the "unusual case where the interests of justice would be best served by doing so."
There are other reasons, called "enhancements" that can make the crime of burglary even more serious. Enhancements cause judges to apply additional time to a sentence for burglary. Some of these enhancements are:
1. Committing felony burglary
after being convicted of a prior felony within the past five
2. Causing great bodily harm to a victim during the commission of a burglary. The length of time applied for this enhancement depends on the severity of the injury to the victim, the condition of the victim when injured, etc.
3. Committing felony burglary to the home or dwelling place of a vulnerable victim. California courts have applied this enhancement when the victim are blind, deaf, paraplegic, developmentally disabled, senior citizens over age 65, pregnant and others conditions rendering them especially susceptible.
Contact the Lee Law Group for additional information on penalties for this offense.
While burglary's penalties can be quite severe, there are numerous defenses that a skilled California criminal defense lawyer can present on your behalf. The following are some of the most common.
1. Lack of Intent.
Intent is an element of the crime, which means it must be present or the crime is not committed. Without intent, not all the elements of the crime are met and it is "unfinished". Therefore, there can be no conviction
2. Mistake in Fact
You may not be guilty of burglary in California if you are mistaken as to facts of a situation or circumstance. That is, if the facts were as you believe them to be, there would be no crime. For example, if you entered another person's home to take back something that you thought belonged to you. It the facts were as you believe, you would not be entering the dwelling to "commit a felony, i.e., that of larceny inside." Therefore, absent that element of burglary, you would not be guilty of burglary.
3. Factual Innocence
“I am innocent because I did not do it!” It is still the best defense, if true. This may often be the case through mistaken identity, faulty evidence or dishonest witnesses. This is why hiring an experienced criminal defense attorney is very important because often a good legal defense may prove your innocence or convince the prosecutor to reduce...or possibly even dismiss...your charges, because a good criminal defense attorney may make it be too difficult for them to prove your guilt.
4. Police Misconduct
Often police are over anxious to solve a crime, believe you are guilty or believe that you are bad person who needs to be off the streets because you got away with various crimes in the past. This type of mindset could cause them to conduct their investigations in improper ways. This may include planted or fabricated evidence, conducting improper line-ups causing “witnesses” to wrongfully identify you or otherwise violating your constitutional rights to obtain a conviction.
If police misconduct is suspected, we can file a "Pitchess motion" as to the officer. If granted, a Pitchess motion allows us to see whether others have made similar complaints about the officer in the past. If we can show that the officer engages in a pattern of police misconduct, the prosecutor or judge may dismiss your charges. Or, if the case goes forward, we will make sure that this officer's conduct is explained to the jury, possibly causing them to find you not guilty at trial.
IF YOU ARE SUSPECTED OR CHARGED WITH FIRST OR SECOND DEGREE BURGLARY,
CONTACT THE LEE LAW GROUP AND WE WILL FIGHT FOR YOU.