Under California law (Penal Code §459), Burglary is defined as "entering a structure with the intent to commit a felony (or a petty theft) once inside".
While this offense is commonly referred to as "breaking and entering," forced entry is not required. If one intends to commit a theft or felony after entering, the Burglary is [technically] complete upon passing through the threshold of the structure.
Depending on the criminal history of the defendant as well as the circumstances of the case, Burglary may be charged as a misdemeanor or a felony. Because it can be charged either way, we call it a "wobbler" and the difference is significant. As a misdemeanor, a conviction can lead to some time in county jail; as a felony, one can be sentenced to several years in State Prison.
Example:
You go to a college party knowing that there will be drunk college girls who sure to be careless with their purses.
Knowing that you can easily lift wallets, jewelry, and other items of value from the sauced co-eds, you enter the party and get to work.
That is burglary...and yes, that can land you in STATE PRISON!
Remember, accusations and convictions are completely different. That is why
skilled and aggressive legal counsel is a must for anyone facing Burglary allegations or charges.
Penal Code §459: How One Can Be Convicted
A Burglary (PC§459) conviction in California requires that the prosecution prove, beyond a reasonable doubt, only two things:
First: that the defendant entered a building or other specified structure or enclosure,
AND
Second: that, at the time the defendant entered, he or she had the intent to steal or commit some other felony.
One would think that a conviction should be simple given that there are only two elements to prove. However, a skilled Criminal Defense Attorney knows that there is much more to it than that.
What is a Building?
A "building" is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property. The law actually identifies over twenty types of locations that may be the subject of a burglary.
For example:
• homes
• hotel rooms
• apartments
• campers
• motor homes
• shops
• stores
• offices
• warehouses
• restaurants
• cars
• boats
• airplanes
• railroad cars
• barns
• stables
What is Entry?
"Entering" a structure is not as obvious as just walking through a door or crawling through a window. For purposes of California burglary law, one "enters" a building or structure:
1. When any part of the defendant's body crosses the outer limits of that location, or
2. When any object under the defendant's control crosses those limits.
Look at it like this: when Goldilocks entered the Bear's home by walking through the door, she entered. If she had the intent to take food when she did, the burglary was complete the moment she crossed the threshold. Even if she changed her mind and walked out empty-handed. That is simple.
However, what if she simply reached in through the already-open kitchen window? Yes, that is enough for entry. Had she reached in intending to take the pie that was cooling on the counter, the burglary would be complete.
Let's say she used a fishing pole to lift the pie up and through the window and that no part of her body passed through and into the house...that is enough for entry. The fishing pole entered under her control. That's all it takes.
Theft is Theft
California’s Burglary statute specifically refers to both grand theft and petty theft.
Grand Theft (PC §487) refers to
• stolen goods or services valued above $400,
• stolen cars (grand theft auto), or firearms, regardless of their value, and
• property stolen directly from another’s person.
Petty Theft (PC §484) refers to
• stolen goods or services valued at or below $400.
Burglary and Robbery are Different, but Can be Related
Robbery (PC §211) is simply as the taking of another’s property from his or her person or immediate presence, accomplished by force or fear.
The individual who enters a structure with the intent to use force, intimidation, or fear to obtain property from a person on the premises, the burglary is complete. If that same individual carries out the intended crime, he or she will also face robbery charges and probably several others.
First Degree Burglary vs. Second Degree Burglary
California separates burglary into two categories -- first degree burglary and second degree burglary (
PC §460)
First Degree Burglary, also known as residential burglary, occurs when the defendant commits a burglary on any inhabited dwelling and is the more serious of the two types. A dwelling is "inhabited" if it is used for dwelling purposes, regardless of whether it is currently occupied.
First degree burglary is always a felony.
Second Degree Burglary, a.k.a. commercial burglary, is any burglary that isn't first degree. Shoplifting (
PC §484) is the most common example. Second degree burglary is a "wobbler," which means it may be prosecuted as a felony or as a misdemeanor.
Strike Three, You’re Out
A first degree residential burglary conviction, it will count as a California serious felony under
PC §1192.7(c). If there was a person in the residence or other structure at the time of entry, the burglary will count as a violent felony. In either of these situations, the conviction will count as a strike under California’s Three Strikes Law, which could ultimately result in lifetime imprisonment.
Defending PC §459 Burglary
Make no mistake, penalties for burglary in California a strict and sometimes the evidence can appear very damaging. Nevertheless, a skilled California burglary
attorney knows how to argue against the evidence and present a tough legal defenses to persuade the prosecution to resolve the case or maybe even dismiss it altogether.
If you or a loved one has been accused, arrested, or charged with a burglary in Southern California, consult a skilled Criminal Defense Attorney who will take the time to fight for you personally.
For more information about burglary, or to discuss your case confidentially, contact The Law Office of David J. Givot at (310) 699-0070 or go to:
http://www.thelegalguardian.net/
