Violation of California Penal Code 459
Burglary is defined by California Penal Code 459. The charge is prosecuted as a felony or misdemeanor and involves trespassing and theft, entering a building or automobile, or loitering unlawfully with intent to commit any crime, not necessarily a theft – for example, vandalism. Even if nothing is stolen in a burglary, the act itself is a statutory offense.
If charged with an act of burglary, you can be charged with either first or second degree burglary depending on the type of structured entered. First degree or residential burglaries occur inside someone’s home and are felony charges. Second degree or commercial burglaries occur inside all other types of structures and is considered a “wobbler” meaning that you can be charged with either a felony or misdemeanor, depending on the particular circumstances of the case.
We can help.
There are many legal defenses to burglary. If you are charged, only a calm, professional initial assessment of your case will reveal the best defense. If you are seeking an experienced criminal attorney to represent you in Orange County, California, remember that the law office of Adam R Stull has defended thousands of people who are charged with serious crimes of all types. Our goal - my goal - is to seek the best possible course the reduce the charges or seek dismissal. It takes a skilled legal team to help you make the case and to protect your freedom. Please contact our offices as soon as possible to start preparing your defense strategy. Remember the consultation is free.
Details that make a BIG difference.
Subtle differences in a case can determine what kind of defense is possible. Those differences can have a huge impact on penalties (if there are any) and possible outcomes after a trial.
For instance, there are differences in what can be called a "robbery" and what can be called "burglary". For one thing, robbery in California is considered a separate and distinct crime from burglary. Under California Penal Code 211, robbery is the taking of property by means of force or fear from someone against their will. Robbery is also treated differently than theft like shoplifting or car theft. by its inherently violent nature (a violent crime); whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony for this reason.
Another way that burglary is different from robbery is that there does not need to be face-to-face with another person. For an act to be considered "burglary" the evidence must show that you entered into a structure with the intent to commit a felony (e.g., a theft).
Defining the difference between burglary and theft can even more nuanced. An experience California criminal attorney will help you sort out a very broad definition of California Penal Codes 484 through 502.9. Theft includes many other possibilities including (but not limited to) auto theft, embezzlement, extortion, fraud, grand theft, petty theft, identity theft, larceny, shoplifting, and receiving stolen property.
But again as in robbery, a charge of burglary requires that you have entered a building (residential or commercial) with the intent to commit a felony (such as theft).
The bottom line.
Burglary is a violation of Penal Code Section 459 and depending on the type of burglary, it can be classified as a misdemeanor or a felony. The elements in a case of burglary can be:
As was stated earlier, a first degree burglary is the breaking or entering into a house in order to steal or commitment a felony. This is a violation of Penal Code Section 460(a). This crime is a felony, and is also considered a “strike” under the “three strikes law”. Most of the time when a defendant commitments a first degree burglary or residential burglary, they will be sentenced to state prison. Second degree burglary is all other types of burglary. It typically is where someone enters a premise other than a residence (store, warehouse or other building) in order to steal or unlawfully remove property. The key to determining the level of crime committed in a burglary is the intent of the act (for example: if a person had the intention of entering a Target store and stealing a pack of gum, it could be considered a second degree burglary – and also a petty theft). The key issue to be determined is what the defendant’s intent was when they entered the building.
However, the Law Offices of Stull & Stull has had cases where individuals have committed these types of offences and have received felony probation, without requirement of prison. This however, is the exception, not the standard. The punishment for first degree burglary is fine and imprisonment in a state prison for 2, 4 or 6 years. The punishment for second degree burglary is by imprisonment in the county jail not exceeding 1 year – or state prison for 16 months, 2 years or 3 years.