California Penal Code Sections 458-464 explain the aspects of the crime called “burglary”. It defines burglary as entering a structure, (or other specified enclosure), with the intent to commit grand or pety theft or any felony.
According to the Penal Code, a structure could be considered a house, apartment, residential room, or businesses. The law also includes “mobile” housing (campers and trailers), shops, stores, warehouses, cars, boats, airplanes, railroad cars, barns and stables. There is a big distinction between residential burglary and commercial burglary. Residential burglary refers to the burglary of an inhabited home or premise that someone lives in. A commercial burglary refers to a burglary of a business or merchant place. The penalties for a residential burglary are substantially more sever and will count as a strike with regards to the “three strikes law.”
Burglary is considered a “wobbler” offense, which means it may be charged as a misdemeanor or a felony, with the decision left up to the prosecutor. The prosecutor will make this decision based on your criminal history and details of the crime.
California law establishes two types of burglary: first-degree and second-degree.
State law defines first-degree burglary as “any burglary of an inhabited dwelling.” An inhabited dwelling is any house, vessel, or other property designed for inhabiting and currently inhabited at the time of the burglary. It’s a common misconception that “currently inhabited” means that the property has to have someone living inside at the time of the crime. However, it actually refers to being used as a dwelling at the time of the burglary, even if nobody was actually occupying the property at that time. This is where residential burglary fits in. Second degree burglary, encompasses everything else and usually includes burglary of a business or store.
First degree burglary is always a felony because it is more serious than second-degree burglary. Burglary in the first degree may result in a sentence of imprisonment in state prison for a term of two, four, or six years and a maximum fine of $10,000. Punishment can be increased with longer prison time when weapons were involved, for criminals with prior burglary convictions, or if people were injured during the crime.
Second degree burglary may be charged as a felony or as a misdemeanor depending on the circumstances of the case, and your criminal history. A conviction for a misdemeanor burglary in the second degree cannot exceed a term of imprisonment in county jail for more than one year maximum $1,000 fine . If you are convicted of second degree burglary as a felony, you face sixteen months, or two to three years in the state prison, as well as a maximum fine of $1,000.
In order for you to be convicted of either degrees of burglary, the prosecutor must prove that you intended to commit a felony at the time you entered the location. Otherwise, you could be charged with a simple trespassing crime if your intention cannot be proved. This can be difficult for the prosecutor to do because it must be proven, beyond a reasonable doubt, that you intended to commit a crime at the time you entered, not after you have entered.
There are ways for the prosecutor to try to prove this intent. For instance, if you walk into a shopping store and have scissors (to cut off tags). This could be used as your intent to commit burglary.
If you have burglary tools with you, it would be reasonable for someone to believe that you were intending to commit a crime. “Burglary tools” include crowbars, slim jims, screw drivers, pliers, and other instruments or tools that you can use to enter a structure and/or assist you in committing a burglary. Possession of burglary tools is a separate misdemeanor under California Penal Code. If caught with these tools, it is likely that you will be charged with burglary and possessing burglary tools.
Keep in mind that you don’t actually have to have committed a crime to be convicted of burglary; only the intent to do so is required to be considered burglary. Furthermore, it is not required that you commit the crime on the same day that you entered the premises, as long as entered knowing that you were going to eventually commit a crime there.
An experienced criminal defense attorney will be able to use a number of defenses to minimize and punishments or possibly have your case dismissed all together. Intoxication, entrapment, and the fact that you did not intend to commit a crime until after you were already there are a few defenses. If you have been charged, or think you might be charged with burglary, call my office at 619-238-1905 for a free 30-minute consultation. You want an experienced attorney on your side in a matter like this.
