California law defines burglary under Penal Code 459 PC as "entering a structure with the intent to commit a felony (or a petty theft) once inside".1
Although burglary is often referred to as "breaking and entering," prosecutors can charge you with this offense even if there is no forced entry of the structure. Penal Code 459 deleted the "breaking" language...as well as the requirement that the offense be committed during "nighttime" hours...in the late 1800s.2
All that is currently required is that you enter a building (or other specified enclosure) with the intent to commit a theft or felony once inside.
Burglary is a "wobbler" which means that, depending on (1) the circumstances of the case, and (2) your criminal history, it may be charged as a misdemeanor or a felony.3 If you are convicted of burglary as a felony, you face up to six years in the California State Prison.
Although the penalties for burglary are harsh, it's often possible to get the charges reduced or dismissed. Because of legal technicalities and difficulties of proof, prosecutors frequently agree to settle cases for lesser charges. And burglary cases that go to jury trial, with an effective defense, can result in a "not guilty" verdict.
This photograph was originally taken by Flickr user lanchongzi and the original photo can be found here.
Just because you are accused of or prosecuted for burglary does not mean that you must be convicted of burglary.
In this article, our California criminal defense lawyers provide a comprehensive guide to understanding California burglary law and, more importantly, the defenses that are applicable to it, by addressing the following topics:
If, after reading this article, you have additional questions, we invite you to contact us. You may also find helpful information in our related articles on Auto Burglary, Penal Code 470 Forgery, Theft, Penal Code 487 Grand Theft, Penal Code 484 Petty Theft, Penal Code 503 Embezzlement, Penal Code 211 Robbery, and Penal Code 602 Trespass.
As previously stated, Penal Code 459 defines California burglary as entering a structure or other specified enclosure with the intent to commit a felony (or a petty theft) once inside.
California Penal Code 460 PC separates burglary into two categories -- first degree burglary and second degree burglary.4 First degree burglary is always a felony. Second degree burglary may be prosecuted as a felony or as a misdemeanor.5
This photograph was originally taken by Flickr user osseous/Victor Martinez and the original photo can be found here.
First degree burglary is commonly referred to as residential burglary and is the more serious of the two types. You commit first degree burglary if you burgle any inhabited dwelling...that is, a place where someone lives or sleeps. A dwelling is "inhabited" if it is used for dwelling purposes, whether or not it is currently occupied.6
Second degree burglary, commonly referred to as commercial burglary, encompasses everything else. Second degree burglary is most frequently seen in connection with Penal Code 484 shoplifting offenses.
It is interesting to note how this law has changed. In the late 1800s, first degree burglaries were committed at night, second degree burglaries during the day. Then in 1923, first degree burglary expanded to include inhabited dwelling houses that were burgled at night and burglaries that involved deadly weapons or assault, regardless of the time of day the burglary occurred.
In 1976, the legislature deleted the language regarding weapons and assaults. Then in 1982, the nighttime requirement was deleted. Since then, the pertinent part of the law has remained the same.
In order to convict you of California burglary under Penal Code 459 PC, the prosecutor must prove the following two facts (otherwise known as "elements of the crime"):
Let's take a look at these terms to get a better understanding of the elements.
For purposes of California burglary, a building is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property.7 Penal Code 459 actually lists more than 20 types of buildings and other specified locations that may be the subject of a burglary. These include (but are not limited to):
Although sometimes it's obvious when you "enter" a targeted building or other location, sometimes it's not. For purposes of California burglary law, you "enter" a building or other location when
For example, if you reach into an open window in your neighbor's house, you have "entered" that house. Likewise, if, before you go into a house, you open the door and use a flashlight to look around...and only the flashlight is actually "in" the home...you have entered the home (since the flashlight is under your control).
The bottom line is that if it reasonably appears that, as a member of the general public, you shouldn't have passed the "threshold" without authorization, you unlawfully "entered" the premises...even if only for a moment.
This is where it gets tricky. The prosecutor must prove that you intended to commit a burglary at the time you entered the location. Just like with your alleged entry, sometimes your intent is obvious, sometimes it's not.
Your intent to commit a burglary under California Penal Code 459 PC seems clear if, for example, it's nighttime, you are dressed in dark clothing, the store you are trying to enter is closed, and you are equipped with burglary tools.
"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.8 Possession of burglary tools is a misdemeanor under Penal Code 466.
As a result, if the police alleged that you had burglary tools on you at the time of the offense, you will likely be charged with burglary and possessing burglary tools.
Your intent may not be so clear if, for example, you are caught shoplifting. Unless you walk into a store with scissors (to cut price tags) and concealed bags (to place the stolen merchandise in), the prosecutor may find it difficult to prove that you entered the store with the intent to steal.
Absent these tools, it's just as likely that you didn't form the intent to steal until after you were already inside the store.
When you formed the intent to steal is the key difference between burglary and theft.
This photograph was originally taken by Flickr user liberalmind1012/Janice Waltzer and the original photo can be found here.
"To steal or commit another felony"
California burglary law, under Penal Code 459, requires that you intend to "commit a petty theft, grand theft, or other felony" once inside. It isn't necessary for the prosecutor to prove that you actually committed the intended crime, only that you intended to do so.9
With respect to the "other" felony...the alleged offense doesn't have to be a felony per se. It could be a "wobbler"10, as long as it's not just a straight misdemeanor (the exception being Penal Code 484 petty theft).
For example, if you entered a structure intending to commit murder, you would be guilty of burglary. However, if you entered a structure intending to commit simple battery (a misdemeanor), you would not be guilty of burglary.
Perhaps the best way to illustrate burglary is to list some cases where California courts held that a burglary did or did not take place.
California Penal Code 459 burglary is closely connected to a number of other offenses. Below are some of the most common.
An "auto burglary" takes place when you enter a locked car with the intent to
Unlike a typical burglary, an auto burglary requires an actual "break in".
Auto burglary is second degree burglary. It is prosecuted under California Penal Code 459, just like "regular" burglary and is therefore subjects you to the same penalties.20
Incidentally, if the doors to the car aren't locked, you may alternatively face related charges for Penal Code 602 Trespass (described below) or vehicle tampering.
You commit a forgery under California law when you knowingly create, alter, or use a written document, intending to commit a fraud.21
If, for example, you enter a bank, intending to cash someone else's check with a signature that you forge, you could be charged with burglary and forgery. Similarly, if you enter a store, intending to pay for your purchase with a stolen credit card, you would again, invite both charges...and, most likely, a theft charge as well.
Both grand theft and petty theft are offenses that are specifically referred to in the burglary statute under Penal Code 459 PC.
Penal Code 487 grand theft specifically refers to
Penal Code 484 petty theft refers to stolen goods or services valued at or below $950.23 It is the exception to the burglary rule that you must enter with the intent to commit a felony.
As Penal Code 459 states, if you enter a structure or other specified location with the intent to commit a grand or petty theft, you will be convicted of burglary. Most California burglary offenses involve theft, which is why these crimes are specifically listed.
California Penal Code 503 defines embezzlement as stealing property that has been entrusted to you.24 The most common example of embezzlement is an employee who steals from his employer.
Relying on that example, if you enter your workplace, intending to keep some of the money that you are supposed to transfer from the register to the safe, you subject yourself to burglary and embezzlement charges.
Penal Code 211 defines robbery as the taking of another's property from his or her person or immediate presence, accomplished by force or fear.25
So, if after you enter the structure or other location, you use force, intimidation, or fear to obtain property from a person on the premises...something you intended to do at the time of your entry...you will likely be charged with burglary and robbery.
Trespass is defined under Penal Code 602 as entering another's property without the right to do so.26
Although it would seem that anytime you commit a burglary you automatically commit a trespass, that isn't necessarily the case. Trespass isn't a lesser offense necessarily included in burglary27...but it is a lesser related charge.28
A burglary necessarily implies entry into a structure or other enclosure, while a trespass can occur on vacant land. Moreover, a trespasser usually intends to occupy or remain on the property. A burglar, by comparison, is typically eager to execute his/her intended act and leave the premises.
Here's an example to illustrate the difference. If, for example, you have consent to enter a home (even though you plan on stealing once inside) you would not be guilty of trespass, only burglary. However, if you "break in" to another's home, you could be guilty of California burglary and/or trespass.
This photograph was originally taken by Flickr user Jay Reed and the original photo can be found here.
As previously stated, first degree residential burglary is always a felony. Second degree burglary may be charged as either a misdemeanor or a felony, depending on (1) the circumstances of the case, and (2) your criminal history.29
If you are convicted of first degree residential burglary, you face two, four, or six years in the California State Prison and a maximum fine of $10,000.
If you are convicted of second degree burglary as a felony, you face sixteen months, or two or three years in the state prison and the same maximum fine. If you are convicted of second degree burglary as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.30
If, during the commission of your burglary...regardless of whether it's residential or commercial...you use explosives or torches to effect your entry (to open a safe, for example), you will be charged with a felony and face three, five, or seven years in the state prison.31
If, during the burglary, you inflicted "great bodily injury" (a significant or substantial injury) on another, you face an additional and consecutive three to six year state prison sentence, depending on (1) the nature of the injury, and (2) the nature of the victim.32 Visit our page on California's legal definition of "great bodily injury" for a more detailed discussion of this topic.
California Penal Code 462 PC instructs the judge not to issue a probationary sentence if you were convicted of burglarizing an inhabited structure unless it is an "unusual case where the interests of justice would be best served by doing so".33
Some of the reasons why the judge would approve and issue a probation sentence include (but are not limited to)34:
Some of the reasons why the judge would deny a probation sentence include (but are not limited to)35:
If you are convicted of first degree residential burglary, and someone was in the home/structure that you entered, the offense rises to a California violent felony. If this is the case, and you have prior California violent felony convictions, you will receive an additional and consecutive three-year prison sentence for each of those prior prison terms.
That said, this enhancement will not be imposed if you remained free from prison and other felony convictions ten years prior to your new case.
If you are convicted of felony burglary (whether first or second degree), and a state prison sentence is imposed, you will receive an additional and consecutive one-year prison sentence for each of your prior felony convictions...that is, unless you remained free from prison and other felony convictions for five years prior to your new case.36
You will also receive an additional and consecutive one or two year enhancement if you committed first degree burglary against any of the following people if you knew or reasonably should have known that these facts existed:
If you commit first degree residential burglary, it will count as a California serious felony under Penal Code 1192.7(c).38 As previously stated, if someone was in the residence or other structure, the burglary will count as a violent felony. In either of these situations, your burglary will count as a strike under California's Three Strikes Law, which could ultimately result in lifetime imprisonment.
While burglary's penalties can be quite severe, there are numerous defenses that a skilled California burglary defense lawyer can present on your behalf. The following are some of the most common.
Intent is critical to a burglary prosecution. If you don't intend to commit a theft or other felony upon your entry, you can't be convicted of burglary - period. Your intent becomes increasingly difficult to prove if the alleged intended crime didn't actually take place.
Mistake of fact ties directly into intent. If, for example, you reasonably believed that you were entering another's home, to take back something that you thought belonged to you or because you believed you had permission to take the item, you would not be guilty of a California burglary (or, for that matter, a trespass).39
Consent may or may not serve as a viable defense, depending on the situation. Examples of when consent may act as a defense include (but are not limited to):
Consent will not serve as a defense if the property owner invited you in, unaware of your criminal intent. This would be the case if
This is obviously the best and most effective defense to a burglary (or any other) charge. You can be falsely arrested or falsely accused of California burglary under Penal Code 459 PC for any number of reasons.
Perhaps yours is a case of mistaken identity. You happened to look like (or have the same name as) someone who was reported to the police.
Perhaps yours is a case of misleading evidence. Let's assume, for example, that someone's home or business was burgled and that you had previously been there for innocent and legitimate reasons. Those prior occasions would explain why your fingerprints were found at the crime location.
Even when the evidence appears damaging, an experienced California burglary attorney knows how to present the most effective arguments and legal defenses to convince the prosecutor to reduce or possibly even dismiss your charges.
For more information about burglary, or to discuss your case confidentially with our California criminal defense lawyers, we invite you to contact us. We have local criminal law offices in the San Francisco Bay area, Ventura, Los Angeles, San Bernardino, Riverside, Orange County, and many other nearby areas.
To learn about Nevada burglary law, go to our informational article on Nevada burglary law.
1California Penal Code 459 -- Definition. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the [California] Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.")
2California Penal Code 459 (Historical and Statutory Notes). ("As enacted in 1872, the section read: "Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary." The amendment of 1875-76 deleted the requirement that entry be made in the night time and deleted former provisions relating to the method of entry. The amendment added to the list of protected structures "shop, warehouse, store, mill, barn, stable, outhouse, or other building" and it omitted "water craft".")
3California Penal Code 461 -- Punishment. ("Burglary is punishable as follows: 1. Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. 2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.")
4California Penal Code 460 -- Degrees; construction of section. ("(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree [also referred to as residential burglary]. (b) All other kinds of burglary are of the second degree...")
5See California Penal Code 461, endnote 2, above.
6California Jury Instructions -- Criminal. CALJIC 14.52 Burglary; inhabited dwelling, defined. ("An inhabited [dwelling house] [ ] is a structure which is currently used as a dwelling whether occupied or not. It is inhabited although the occupants are temporarily absent.")
7People v. Alexander, (1966) 244 Cal.App.2d 301, 305. ("The well-understood meaning of the word [building] is a structure which has a capacity to contain, and is designed for the habitation of, man or animals, or the sheltering of property.")
8California Penal Code 466 -- Burglary instruments or tools. ("Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the [California] Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. [Italics added] Any of the structures mentioned in [California Penal Code] Section 459 [burglary] shall be deemed to be a building within the meaning of this section.")
9California Jury Instructions -- Criminal. CALJIC 14.50 Burglary. ("It does not matter whether the intent with which the entry was made was thereafter carried out.")
10In People v. Rehmeyer, (1993) 19 Cal.App.4th 1758, the defendant was convicted of burglary when he unlawfully entered a home, intending to commit the crime of indecent exposure (a wobbler).
11People v. Ortega, (1992) 11 Cal.App.4th 691 ("One who enters home with intent to commit extortion [that is, Penal Code 518 extortion] is guilty of burglary [under California Penal Code 459], even if extortion will not be completed until some time in future at location other than where entry took place.")
12People v. Clayton, (1998) 65 Cal.App.4th 418, 422 ("Clayton's entry into Kathleen's house created precisely that type of danger [the type that California Penal Code 459 burglary laws are designed to protect against], and the fact that Richard consented to Clayton's entry and knew about Clayton's felonious intent did not give Clayton an unconditional possessory right to enter for any purpose, and certainly not for the purpose of injuring Kathleen, who did not know of or endorse Clayton's intent. FN5 ( People v. Salemme, supra, 2 Cal.App.4th at p. 781; People v. Felix (1994) 23 Cal.App.4th 1385, 1398 [28 Cal.Rptr.2d 860] [there must be evidence of informed consent to enter coupled with the intruder's knowledge that "the occupant" is aware of the intruder's felonious purpose and does not challenge it]; cf. People v. Gauze, supra, 15 Cal.3d at p. 716, fn. 5.) This is not a case where the defendant entered his own home or where the consent to enter has been given by the person who is the object of the intended felony.")
13People v. Kwok, (1998) 63 Cal.App.4th 1236, 1240 ("The court held that the fact that defendant's intent at the time of the first entry was to commit a felony assault on the victim on a future date still satisfied the intent requirement of [burglary under California] Pen. Code, § 459 ("person who enters ... with intent to commit grand or petit larceny or any felony"). The phrase "enters ... with intent" has been uniformly construed to mean that the intent to commit the theft or felony must exist at the time of entry, not that the target crime must be committed on the same occasion as the entry.")
14People v. Sparks, (2002) 28 Cal.4th 71, 87 ("As the court observed in McCormack, supra, 234 Cal.App.3d 253, treating the entry at issue here as an entry for burglary is consistent with the personal security concerns of the burglary statute, because entry, from inside a home, into a bedroom of the home "raise[s] the level of risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm." ( Id., at p. 257.) Here, the 22-year-old victim, living in her family's home, reasonably could expect significant additional privacy and security when she retreated into her own bedroom. Accordingly, consistent with California decisions construing [California Penal Code] section 459, reaching back to Young, supra, 65 Cal. 225, and consistent with the common law and the history of section 459, we conclude that the unadorned word "room" in section 459 reasonably must be given its ordinary meaning. It follows that the trial court did not err in this case by instructing the jury that entry into Ana's bedroom with the specific intent to commit rape constitutes a [residential] burglary in violation of section 459.")
15People v. Valencia, (2002) 28 Cal.4th 1, 12 ("Under the reasonable belief test as set forth above, we are of the view that a window screen is clearly part of the outer boundary of a building for purposes of [California] burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization.")
16People v. Gauze, (1975) 15 Cal.3d 709, 714 ("A burglary remains an entry which invades a possessory right in a building. And it still must be committed by a person who has no right to be in the building. Applying the foregoing reasoning, we conclude that defendant cannot be guilty of burglarizing his own home [under California Penal Code 459]. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly defendant had an absolute right to enter the apartment.")
17People v. Davis, (1998) 18 Cal.4th 712, 722 ("Inserting a stolen ATM card into an ATM, or placing a forged check in a chute in the window of a check-cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute [Under California Penal Code 459]. Neither act violates the occupant's possessory interest in the building as does using a tool to reach into a building and remove property. It is true that the intended result in each instance is larceny. But the use of a tool to enter a building, whether as a prelude to a physical entry or to remove property or commit a felony breaches the occupant's possessory interest in the building. Inserting an ATM card or presenting a forged check do not. Such acts are no different, for purposes of the [California] burglary statute, from mailing a forged check to a bank or check-cashing facility.")
19In re Leanna W., (2004) 120 Cal.App.4th 735, 738 ("We find the evidence insufficient to support a finding that Leanna had the necessary intent to commit a theft or felony when she entered her grandmother's home. We also find the evidence insufficient to support a finding that Leanna, as opposed to any other person in the home, committed the damage or destruction of the property. Finding insufficient evidence to support the court's findings of [California] burglary [under Penal Code 459] and vandalism, we reverse the judgment.")
20See California Penal Code 459 -- burglary, endnote 1 above.
21California Penal Code 470 -- Forgery. Forgery occurs when you intend to commit a fraud and: (a) sign someone else's name without authorization, (b) counterfeit or recreate the seal or handwriting of another without prior approval, (c) alter, corrupt, or falsify specific legal written documents, such as a will or court record, and/or (d) falsely make, alter, recreate, counterfeit, utter, or publish, (1) any document or item relating to money, stocks, a sale, transfer, or exchange of goods or property,(2) any written document relating to how one intends to dispose of his/her property upon death, (3) a legal document other than a will or court record (a power of attorney, for example), or (4) a notarized document.
22California Penal Code 487 -- Grand theft defined. ("Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred and fifty dollars ($950)...(c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile...(2) A firearm.")
23California Penal Code 488 -- Petty theft defined. ("Theft in other cases is petty theft.")
24California Penal Code 503 -- Definition. ("Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.")
25California Penal Code 211 -- Definition. ("Robbery defined. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.")
26California Penal Code 602 -- Trespasses constituting misdemeanors; enumeration. ("Every person who willfully commits any trespass by either:...(l) Entering and occupying real property or structures of any kind without the consent of the owners, his agent, or the person in lawful possession thereof;...is guilty of a misdemeanor.")
27People v. Harper, (1969) 269 Cal.App.2d 221, 222 ("We need not state the facts since reversal is required for error of law, the crime of criminal trespass [California ](s 602(l), Penal Code)FN2 not being a lesser included offenseFN3 in a charge of violation of [California burglary under] section 459 of the Penal Code.")
28People v. Farrow, (1993) 13 Cal.App.4th 1606, 1620 ("With respect to the "third Geiger criterion," the giving of instructions on trespass and vandalism as lesser related offenses to the charged [California] burglary would have been entirely consistent with the defense theory put forward by each of the defendants.")
29See California Penal Code 460, endnote 5 above.
30See California Penal Code 461, endnote 2 above. See also California Penal Code 672 -- Offenses for which no fine prescribed [such as burglary]; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
31California Penal Code 464 -- Burglary with acetylene torch, etc., or explosives; punishment. ("Any person who, with intent to commit crime, enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of acetylene torch or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or by use of nitroglycerine, dynamite, gunpowder, or any other explosive, is guilty of [California burglary] a felony and, upon conviction, shall be punished by imprisonment in the state prison for a term of three, five, or seven years.")
32California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony [such as a California first degree residential burglary] or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years.")
33California Penal Code 462 -- Probation; conviction of burglary; specification of reasons for granting probation. ("(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach...inhabited floating home..., or the inhabited portion of any other building [all acts punished as California first degree residential burglary]. (b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record.")
34California Rules of Court 4.413 -- Probation eligibility when probation is limited. ("(b) Probation in unusual cases -- If the defendant comes under a statutory provision prohibiting probation "except in unusual cases where the interests of justice would best be served," or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in [California Rules of Court] rule 4.414 to decide whether to grant probation. (c) Facts showing unusual case -- The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate [in a California first degree residential burglary, for example]: (1) Facts relating to basis for limitation on probation - A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence [like California felony burglary]; and (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. (2) Facts limiting defendant's culpability - A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and (C) The defendant is youthful or aged, and has no significant record of prior [California residential burglary or other] criminal offenses.")
35California Rules of Court 4.414 -- Criteria affecting probation. ("Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. (a) Facts relating to the crime -- Facts relating to the crime include: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime [in this case, California first degree residential burglary]; (2) Whether the defendant was armed with or used a weapon; (3) The vulnerability of the victim; (4) Whether the defendant inflicted physical or emotional injury; (5) The degree of monetary loss to the victim; (6) Whether the defendant was an active or a passive participant; (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. (b) Facts relating to the defendant -- Facts relating to the defendant include: (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; (2) Prior performance on probation or parole and present probation or parole status; (3) Willingness to comply with the terms of probation [with respect to California first degree residential burglary]; (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; (5) The likely effect of imprisonment on the defendant and his or her dependents; (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; (7) Whether the defendant is remorseful; and (8) The likelihood that if not imprisoned the defendant will be a danger to others.")
36California Penal Code 667.5 -- Prior prison terms; enhancement of prison terms for new offenses. ("Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c) [like California first degree residential burglary under Penal Code 459], in addition to and consecutive to any other prison terms therefore, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (c) For the purpose of this section, "violent felony" shall mean any of the following [italics added]: (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460 [of the California Penal Code], wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.")
37California Penal Code 667.9 -- Conviction of certain crimes against persons 65 years of age or older, blind, deaf, developmentally disabled, paraplegic, quadriplegic, or under the age of 14 years; prior conviction; sentence enhancements. ("(a) Any person who commits one or more of the crimes specified in subdivision (c) [like California first degree residential burglary under Penal Code 459] against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation. (b) Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under [California Penal Code] Section 667. (c) Subdivisions (a) and (b) apply to the following crimes: (11) Burglary of the first degree, as defined in Section 460, in violation of [California Penal Code] Section 459.")
38California Penal Code 1192.7(c) - ("(c) As used in this section, "California serious felony" means any of the following...(18) any burglary of the first degree")
39California Jury Instructions -- criminal. CALJIC 4.35 Ignorance or Mistake of Fact ("An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent [in this case for California burglary] is not a crime. Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.")
40See People v. Gauze, endnote 19 above.
41People v. Superior Court (Granillo), (1988) 205 Cal.App.3d 1478, 1485 ("Granillo was not an intruder, nor did any danger to personal safety arise from his mere entry. He entered, not only with the officer's informed consent, but also with his (Granillo's) own knowledge that Cantu was operating out of his apartment as a fence. Indeed, the officer did more than consent to Granillo's entry; he invited him to his apartment. The visit was fully orchestrated by the authorities in an effort to catch criminals in the act and recover stolen property. Thus, to say Granillo could be found guilty of burglary [when invited in to specifically receive stolen property] would be contrary to the primary basis of the [California] burglary law [under Penal Code 459].")
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