Orange County Burglary Lawyers

burglary crowbar, flashlight, and gloves

The penalties for burglary in California are severe, making it extremely important that every defendant has a skilled Orange County burglary lawyer assisting them with their situation.  If you have been charged, you need to understand the laws that govern your offense so you know the best ways to protect yourself.  You also need an experienced legal professional to represent you in court.  These charges are serious allegations that carry life-altering consequences.  You should understand your legal rights, your options, and the ramifications you are facing to help give yourself the best chances of success.

OC Burglarly Defined

PC 459 defines burglary as entering a structure (i.e. residence, commercial property, vehicle, room, storage facility or other structure) with the intent of committing a crime or felony (i.e. theft, robbery, assault, rape, homicide, vandalism, arson, etc.).  Because burglaries can be charged as misdemeanors or felony crimes depending on the circumstances, you should have an experienced criminal defense attorney to represent you in order to protect your legal rights.

It is important to note that in California you can be charged and found guilty even if you did not commit a theft upon entering a premises—you only must have the intent to commit the theft upon entering the structure to be found guilty.  Furthermore, even though burglary is often synonymous with “breaking and entering,” the actual charge does not require forced entry with the exception of auto offenses.  Therefore, if you walk into an open garage with the intent to steal a toolbox but you are stopped prior to the actual theft, you can still be found guilty.

Difference between 1st and  2nd degree Burglary in Orange County

There are two degrees of burglary in California: first and second.  First degree, often referred to as residential because it involves entering a residence or structure designed for habitation, is a felony offense.  The structure does not need to be occupied at the time of the offense to qualify for first degree.

Second degree, also known as commercial, covers all other allegations.  In California, this is a “wobbler” offense meaning that it can be charged as a felony or a misdemeanor.  In most cases, the prosecutor will consider the totality of the circumstances surrounding the crime when deciding whether to charge the defendant with felony second degree or misdemeanor second degree.

Both first and second are serious charges; however, first degree counts as a strike under California’s three strikes law while second degree, even when charged as a felony, does not count as a strike.  Because of the severity of the three strikes law, you should have an experienced burglary defense attorney to defend you against an aggressive prosecution.

What Prosecutors Need to Convict OC Burglary Defendants

California Penal Code 459 and 460 govern these types of offenses.  In order to convict you, the prosecution must first prove that you entered an enclosure with the intent to commit a felony theft offense.  Enclosures include:

  •  Home
  • Room
  • Apartment
  • Business, shop or store
  • Warehouse
  • Stable or barn
  • Mill
  • Outhouse or other building
  • Tent
  • Vehicle
  • Inhabited camper
  • Trailer coach
  • Locked or sealed cargo container
  • Floating home
  • Vessel
  • Aircraft
  • Mine

In order to convict a defendant of a first degree offense, a prosecutor must prove three elements:

  1. The defendant entered an inhabitable structure or room within that structure whether or not the structure was occupied at the time of entry or not
  2. That the defendant entered the structure with the intent to commit a theft or other felony
  3. Prove the above two elements beyond a reasonable doubt meaning that when presented with the evidence, the average person would not be left with a reasonable doubt that the defendant actually committed the crime with which he or she is charged.

The elements of second degree burglary are the same with the exception of the structure – – the structure is an enclosure other than a home or other inhabitable structure.

It is important to remember that you need not have completed the theft in order to be found guilty in California.  Only your intent is in question when determining if you are guilty.  Proving intent is a bit more difficult.  A prosecutor has the burden of proving your intent was to commit a theft when you entered the premises.  There are several ways a prosecutor may attempt to prove intent including, but not limited to:

You entered the premises in possession of tools such as empty bags for carrying items, crowbars, flashlight, pliers, wrench, etc.

  • You were wearing clothing that would disguise or hide your appearance making it difficult for your identity to be known.
  • You entered the premises after normal business hours, at night or at another time that would hide your intention.
  • Your statements to the owners of the premises, to third parties, or to the police when you were arrested.

Because intent is difficult to prove, criminal defense attorneys often rely heavily on convincing a jury that the prosecution has not proven beyond a reasonable doubt that the defendant actually intended to commit a theft or felony.

Burglary penalties

Because first degree burglary is considered a strike, you must serve a minimum of 85% of your sentence regardless of any other circumstances before you are considered for parole.  First time offenders face between two to six years in state prison.  Probation is not typically granted in most cases.  It is also important to remember that since this falls within the Three Strikes Law subsequent charges could result in 25 years to life in prison if found guilty.

Burglary that is charged as a misdemeanor carries a maximum one year sentence in county jail if the defendant is found guilty.  However, if the charge is felony second degree, the sentence can be up to three years in state prison.

Defending a Burglary Charge in California

An experienced criminal defense attorney has a variety of defenses that he or she can utilize when arguing on behalf of a defendant.  Common defenses may include that the items you took belong to you, you were given permission by the owner to enter the premises and remove the items, you did not intend to commit theft, or that it is a simple case of mistaken identity.


The most important thing to remember—if you are charged in California, you should immediately contact an experienced burglary defense attorney. At MacGregor & Collins, LLP, we offer free confidential case evaluations for anyone facing charges and can help get you back on the right track. Our team of skilled legal professionals are dedicated to providing superior representation and can provide you with valuable service. Call (888) 250-2865 today to speak with one of our Orange County burglary lawyers about your options. We provide a free consultation for anyone facing burglary charges in Southern California.

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