What is Burglary?

Burglary is defined in Penal Code Section 459. It states that burglary is committed when someone enters a building, room within a building, vehicle, or structure with the intent to commit a felony or theft within. The following three things must also be true:

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• The value of the property that was stolen or intended to be stolen was more than $950 (the value was recently raised)

• The structure was not a commercial establishment 

• If the structure was a commercial establishment, the entry occurred outside of business hours

-PC459

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It should be noted that there is no requirement that the felony or theft occur, only that the intent to commit it be present.

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What is First-Degree Burglary

First-degree burglary is always charged as a felony, and under California's Three Strike Law is considered a serious felony. First-degree burglary occurs when the burglary is of a dwelling. The dwelling can be a house, car, boat, trailer, or a part of a building that is considered "inhabited." The inhabitants do not need to be present at the time for first-degree burglary to apply.

The maximum penalty for first-degree burglary is six years in state prison.

What is Second-Degree Burglary

Second-degree burglary occurs when the burglary is of a structure that is not a dwelling and can be charged as either a misdemeanor or a felony. What dictates whether the charge will be a felony or misdemeanor are the facts of the case, the accused's criminal history, 

If charged as a felony the maximum penalty is three years in county jail. If charged as a misdemeanor, the maximum penalty is one year in county jail. 

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​Defenses

Burglary is a specific intent crime. The person who entered needed to have the intent to commit a felony or theft within.  This gives rise to a number of possible defenses.

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Consent

If it can be shown that the defendant had permission or consent to enter the structure, then there is no burglary. There will be a theft or intended theft crime, but not a burglary.

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No Intent

In some cases, it can be shown that the defendant did not have the intent to commit a felony or theft when they entered the structure. In some cases, it might be a need for shelter when they entered. Sometimes being intoxicated may defeat the intent requirement. If someone was under the influence of an intoxicant, they may not have had the ability to form the required intent. However, for intoxication it should be noted that in California, the intoxication must have been involuntary, meaning that the accused was drugged by someone else. 

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No Entry

If there was no entry, then there was no burglary. For example, someone cannot be convicted of burglary for attempted theft from an ATM located outside of a building. 

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No Inhabitation

If it can be shown that the structure entered, even if it was a house, was not inhabited, then there was no first-degree burglary. This may happen if the house was abandoned, or possibly up for sale if the inhabitants had already relocated and the new house is set up as their new dwelling, and they had no intent to return to the other house.

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Shoplifting

Given the facts of the case, it can be shown that the theft falls under shoplifting and not burglary, then the charges can be reduced. Shoplifting is defined in Penal Code Section 459.5 as entering an open store or business with the intent to steal $950 or less of merchandise. The maximum penalty for shoplifting is six months in county jail, which is much less than burglary.

Hiring An Experienced Attorney

Burglary is a serious crime where you can face serious consequences. Having an experienced criminal defense attorney is key to trying to preserve your freedom or at least get the consequences reduced. Mr. Pitman spent three years with the District Attorney's Office learning how they work and think. This gives him the ability to look at your case from their point of view and formulate plans and strategies to help keep you out of prison. This can be anything from writing motions to get evidence excluded to showing the prosecutor the weakness in the case and getting it dismissed. Call The Pitman Law Firm, your Encino Burglary Defense Firm, now for a free consultation.