Orange County Burglary Attorneys

Determining The “Degree”

In California, burglary is defined and prohibited under California Penal Code 459. Burglary is when a person enters a dwelling or other structure with the intent to commit a crime. There are two types of burglary:

• First degree burglary
• Second degree burglary

Difference Between First and Second Degree Burglary

In California, first degree burglary occurs in a residence and is a felony punishable by two, four or six years in a state prison, up to $10,000 in fines and the defendant is not eligible for probation. Second degree burglary occurs in any structure other than a residence and can be either a misdemeanor or a felony.

If second degree burglary is charged as a felony, generally the defendant will be sentenced to sixteen months, two or three years in state prison and up to $10,000 in fines; if charged as a misdemeanor, the crime is punishable by up to one year in county jail and a maximum of $1,000 in fines. The punishments for both types can be increased or decreased with the existence of certain elements such as whether a person was injured during the attempt or whether a weapon was used.

The following fictional story could be considered an example of first-degree burglary:

Sandy and her girlfriend have been burglarizing businesses for years. Their new “score” had been scoped out, and they were ready to move in. They went in at night, and in the middle of their burglary, a person came out of nowhere and threatened them with a gun. They soon learned that the business owner resides within the building. They wait for the police to arrive at which time Sandy and her friend are charged with first-degree burglary.

Second-degree burglary, 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. The level you may be charged with depends upon the circumstances surrounding your particular alleged offense. 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.

California law distinguishes shoplifting from a commercial burglary. Shoplifting is the correct charge if someone enters a business during its regular business hours with the intent to steal property that has a value of $950 or less. Entering a store to commit a theft while the store is closed or entering with the intent to steal property worth more than $950 are examples of a commercial burglary.

Entering a car or other vehicle with the intent to commit a theft or felony is also second-degree burglary, but only if the vehicle is locked. Burglaries of homes, stores, rooms, or other buildings can occur even if the premises are not locked. Except for vehicles, “breaking and entering” is no different from walking through an unlocked door.

Both first and second are serious charges. However, first-degree counts as a strike under California’s three strikes law. On the other hand, second-degree, even when charged as a felony, does not count as a strike. Because of the severity of the three strikes law, you need an experienced Orange County burglary lawyer to defend you against aggressive prosecution.

What Evidence is Needed to Prove Burglary?

California Penal Code 459 and 460 concern burglary offenses. To convict you, the prosecution must first prove that you entered an enclosure with the intent to commit a felony theft offense.

Enclosures include:

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 they are charged

The elements of second-degree burglary are the same, with the exception of the structure. In second-degree, 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 to be found guilty in California. Only your intent is in question when determining if you are guilty. Proving intent is a bit more complicated.

A prosecutor has the burden of proving that your intent was to commit a theft when you entered the premises.

A prosecutor may attempt to prove intent in several ways, 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 regular 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, Orange County burglary 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 in CA

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 2 to 6 years in state prison and/or up to $10,000 in fines. Probation is not typically granted in most cases. It is also important to remember that because 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 1-year sentence in county jail and/or a fine of $6,000 if the defendant is found guilty. However, if the charge is felony second-degree, the sentence can be up to 3 years in state prison and the fine up to $10,000.

Minimum or maximum sentencing for burglary depend on factors such as:

• If a weapon or firearm was used during the course of the burglary
• If someone was injured
• If so, the extent of the victim’s bodily injuries

Defending a Burglary Charge in California

Innocent people are often accused of burglary. A stray fingerprint might be mistaken for “evidence” of a crime despite your innocent presence in the property prior to the burglary. Mistaken identity is frequently a defense to burglary.

Some people enter property with the incorrect belief that they have permission to enter the home. Some people mistake another person’s property for their own. Since those entries are made with no intent to commit a crime inside the premises, you have a defense to the charge in those situations.

You have the right to present a defense to criminal accusations. To mount a vigorous defense, you need an accomplished criminal defense attorney. Randy Collins has been recognized as an “OC Metro Top Attorney.” He defends clients accused of burglary in Orange County and across Southern California. You can count on our team to leave no stone unturned as we investigate the facts, raise legal challenges to the prosecution, and design a persuasive defense to meets your needs.

An experienced Orange County burglary attorney has a variety of defenses that they can utilize when arguing on behalf of a defendant.