Five Things to Know About a Burglary Charge

Posted on June 25, 2015

Burglary (CA Penal Code Section 459) is defined a entering a room, structure, or vehicle, with the intent to commit a theft within. Whether the offense is a misdemeanor or a felony will depend on what type structure was broken into. Burglary charges and their penalties vary depending on several factors.

1) Theft of a Private Residence

A theft from a private residence is always a felony under California law. Also, a burglary conviction is considered a strike under California’s three strike law.

2) Theft of a Business

This type of theft can be considered a misdemeanor or a felony. The offense occurs when a defendant enters a store or other business, intending to commit a crime within. This is often seen where a shoplifter is caught with tools that would suggest they were planning to commit the theft before they entered the store.

3) Two Degrees

In California there are two degrees of burglary. First degree burglary is committed where the dwelling involved was inhabited. It is important to note however, that the dwelling did not have to be physically inhabited at the time of the crime. Second degree burglary occurs where the structure or building does not fit into the definition of a dwelling under first degree burglary.

4) Defenses

There are several defenses to this crime. Some of these include lack of intent, and insufficient evidence. Also, if the defendant entered the structure to take something back that belonged to them it is not considered a burglary. Mistaken identity is also a possible defense. Sometimes, a victim (store owner) may not actually see the perpetrator, or they may not get a good look at the perpetrator because it is dark.

5) Penalties

First degree burglary is punishable by 2, 4 or 6 years in prison. Second degree prison is punishable by no more than one year in jail.

In some cases, though not very commonly, a defendant can get probation, however the premises involved must not have been inhabited. (Refer to our articles: “When does Shoplifting in California become Burglary?“; and “Comparing California burglary laws to Nevada burglary laws.”)

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.