In California, the majority of people confuse burglary with a theft crime or robbery. What they don't know is that these crimes are very different from each other, and each is treated individually in the court. In a burglary, the prosecution must show that the defendant gained access to a property with a plan to engage in a criminal act. Keep in mind an arrest for burglary doesn’t mean you are guilty of the crime. Therefore, in the event of an arrest, The Los Angeles Criminal Defense Attorney is here to help. We have helped clients understand burglary, elements of burglary, various degrees of burglary, and their penalties.

Legal Definition of Burglary

PC 459 explains Burglary as entering a residential or business establishment to commit theft or a felony.  By just entering a structure such as a house, room, or a tent with an illegal or criminal purpose, then you have committed a burglary. There are two classes of burglary, first-degree, and second-degree burglary.

First-degree burglary is for a home invasion or breaking into an inhabited structure. Any property that is inhabited or one that acts as a dwelling at the time of burglary is included in first-degree. If you are caught breaking in a vessel, boat, portion of any building, motel room or house currently occupied, you will be charged with first-degree burglary.

Second-degree burglary, on the other hand, is for commercial or auto burglary. One commits a second-degree burglary by entering any other type of structure that is not a home or residential apartment. When you enter a store, a car or business premises with criminal intent you are charged a second-degree burglary. 

Elements of Burglary

California laws have been changing over time from traditional laws to modern ones. The prosecution is required to prove some of the following features under these laws:

  • Breaking

In this element, the prosecutor has to prove that the defendant used some form of force to gain access or enter a building in common law. However, in modern law, using force is not required to make unlawful entering a burglary. The prosecution needs to show the defendant permanently or temporarily staying in an apartment with the intent to commit a crime.

  • Entering

The prosecution has to prove the defendant entered in a way that a part of their body was in the house or room. In establishing this element, modern and historical laws require similar proof.

  • Dwelling or house

The prosecution has to establish to the jury that the defendant entered a home that is already occupied. However, in the modern-day law, the prosecutor is required to prove the defendant gained entry to a house, apartment, vessel, boat store supermarket, or a car. The victim of the burglary only needs to own the property and not be in it at the time of burglary.

  • At night

In common burglary laws, a case will only qualify as burglary if the defendant entered the building at night. If it’s during the day, it will be deemed as trespassing. But today, with the modern laws, you will be charged with burglary regardless of whether you entered the building during the day or night.

  • With the purpose to commit a felony or crime

In historical laws, the prosecution is required to show the defendant had the intent to commit theft or any other felony such as assault, murder, or robbery. The modern laws are no different when it comes to proving this element. The prosecutor must prove you carried tools that are used for burglary such as pliers and hack saw. In case you claim you had no plan of committing a crime by entering a property illegally, if the prosecution fails to show intent, you will walk free.

Penalties for Burglary.

If you are convicted under PC 459, you will face the consequences depending on the degree of the burglary.

Penalties for the first-degree burglary

The crime is filed as a felony, and its penalties include:

  • Twenty-four, thirty-six, or up to seventy-two months in jail
  • A fine not exceeding $10,000
  • Restitution to the victims for the stolen items
  • Formal probation
  • Strike on your criminal history
  • Again, for residential burglaries, if there was someone in the house at the time you were breaking in, it will be deemed as a violent felony whose penalty when convicted is serving eighty-five percent of your sentence in state prison. But if no one was in the house and you have no strike on your record, after a conviction, you will serve half of the sentence in state prison.

Penalties for second-degree burglary

Commercial or auto burglary can be filed as either a felony or a misdemeanor. The penalties for each of these charges are different. In a felony second degree burglary, the penalties are:

  • Formal probation
  • Sixteen, twenty-four, or thirty-six months sentence in county jail
  • A fine not exceeding $10,000

On the other hand, a misdemeanor second-degree burglary conviction will attract the following consequences:

  • Up to twelve months in jail
  • Misdemeanor probation
  • A fine not exceeding one thousand dollars
  • No strike on your criminal history

Burglary Legal Defenses

These cases are unique since the prosecution has no burden of proving that the defendant committed the theft or a felony by gaining access to the commercial or a currently inhabited residence. Instead, the only thing the prosecutor needs to do is show the intent or plan to commit a California felony. Failure to show essential purpose will provide an opportunity for The Los Angeles Criminal Defense Attorney to build a robust legal defense. Some of the arguments that can be used include:

  1. Actual innocence

In this type of defense, the defendant’s attorney has to convince the court that their client didn’t commit the said offense. By creating some form of doubt in the minds of the jury that the defendant didn’t commit the crime, you will have the upper hand in the case when the prosecution is unable to prove beyond a reasonable doubt that the crime was committed.  Questioning the evidence presented by the prosecutor before the jury is one way of creating uncertainty in the jury’s mind, that might result in an acquittal.

  1. Consented entry

Your defense lawyer can also admit that you entered a property as the prosecution claims, but it isn’t what it seems. Entering a property is not a crime if you had the consent of the owner or occupant of the room; hence, the breaking or entry is not authorized. If the defendant had a reasonable belief that the owner or occupant of the property had allowed them to enter, even if the conviction was erroneous, it would still hold that they had permission from the owner.

  1. Factual innocence

Innocent people can also get arrested for something they didn’t do. These scenarios occur because of:

  • Mistaken identity
  • Misleading evidence
  • False accusation seeking revenge or due to a mental condition

A reasonable attorney can poke holes in the prosecution’s evidence to have the charges dismissed or reduced. For instance, if the prosecution is using fingerprints as evidence in your case, an experienced attorney can argue that the prints found in the victim’s property were at the crime scene because the defendant was there before the crime but for a legitimate reason.

In case there is a witness who claims to have seen you in the crime scene, or you were arrested near the crime scene, the lawyer can argue that you look like someone who was at the scene or your name is similar to that of the person mentioned in the law enforcers report.

  1. Mistake of fact

If you entered in someone’s property to take merchandise or commodity that you believe to be yours or believed that you had permission to take the product, then your attorney can argue the claim of right. It helps prove that you had no plans to commit a theft.

  1. Lack of intent

You will be convicted on another type of crime but not burglary if you enter someone’s property with no purpose to commit a crime. For instance, you went to a friend borrowed a bottle opener and when returning it, you realize that the friend is not home and the door is open. After entering, you find $5000 laying on the table and decide to take $1000 and leave.

If you are arrested and charged with burglary, your attorney can argue that you only went to the house to return the bottle opener and had no plan to steal from the friend. That way, burglary charges will be dropped, and you will be charged with petty theft.

In proving lack of intent, an attorney can also claim that the defendant was voluntarily intoxicated such that he or she couldn’t have the requisite intention to prove they are guilty.

  1. Entrapment

Being set up is common nowadays. However, when a defendant uses entrapment as a form of defense, it becomes challenging to prove. But if you believe you were convinced to commit an act of burglary something that you could not have done or set up, then you can use entrapment as your defense as long as you have evidence to back the claim.

  1. Police misconduct 

At times, police might take shortcuts to solve a burglary case. Some of the things they might do include:

  • Fabricating evidence
  • Failing to recite your Miranda rights
  • Coercing you to confess
  • Illegal search and seizure

If you can show the police officers involved in the case violated particular California laws, then the evidence presented to the court might be dropped which can lead to dismissal of the burglary charges or reduction of charges.

Other Burglary Related Charges

Below are some of the crimes that are strictly related to Burglary:

  1. Possession of burglary tools

According to California PC 466, having tools used in burglaries is a misdemeanor. These tools include crowbars, pliers, master key, bump keys, screwdrivers, or vice grips. Making, altering, and trying to make or change the above instruments is a crime. Possessing alone is not enough for conviction; there must be some element of criminal intent.  Because the prosecution cannot prove whether you had the intention or not, they often rely on circumstantial evidence.

Other instruments that can lead to possession of burglary tools charge include flashlights, sweatshirts, strap-on headlight, and walkie-talkies. You should be very careful when you have these instruments because in case police try to pull you over and you fail to stop; if they manage to arrest you after a long chase and find these items in your car, you might have given them circumstantial evidence to find you guilty of PC 466. 

The common defense that can apply for possession of burglary tools charge include:

  • The instruments or items police found in your car don’t qualify as burglary tools
  • You had no criminal plan
  • The devices were discovered after an illegal search or seizure

The penalties for possession of burglary tools conviction are:

  • Up to six months in county jail
  • A fine not exceeding one thousand dollars
  • Summary probation for thirty-six months
  1. Forgery

Forgery is codified under Penal Code 470 as willingly creating, changing, or using a written document covered with forgery statute with the plan to commit fraud. A forged written document falls into three groups:

  • When you sign another person’s name or made up name
  • When you knowingly pass a false document, identification, or counterfeit money
  • When you write a bad check

If you walk into a bank with a forged financial documents or counterfeit money, you will be charged with forgery plus burglary in the event of an arrest. The punishment for forgery conviction is twelve months sentence to the county jail for a misdemeanor and thirty-six months sentence for a felony.

Some of the defenses that can be used in forgery cases include:

  • You didn’t intend to defraud anyone
  • The document alleged to be forged could not have denied anyone else their legal rights
  • You were falsely accused
  1. Robbery

Robbery is defined under PC 211 as taking property from another person, from his person or immediate presence, against their will using threats and fear. You will be charged with robbery if:

  • You break into an inhabited house while people are inside and threaten physical harm before stealing from them
  • Drugging someone then taking their property
  • After being caught stealing, you threaten the victim bodily harm

In some instances, someone who has committed robbery can be charged with California offense of burglary. You or a defendant will face robbery and burglary if:

  • You gain access or enter a building or property that belongs to another person
  • The moment you are inside the property you apply force, or threaten fear to steal an item from the property owner or the person in the premises
  • You had the intent or planned to steal at the time you entered the property or structure

California robbery offense is filed as a felony, which makes the penalties for a robbery conviction harsh. The punishments will vary depending on the degree of robbery the defendant has committed. The two degrees of robbery are first and second degree.

First-degree robbery:

  • Involves a driver or passenger in a bus, taxi, or subway
  • Takes place in a currently inhabited structure or dwelling
  • It consists of any person who has just come out of an ATM and is still close to the ATM

The penalties for the first-degree robbery include three to nine years sentence. For second degree robbery, the verdict is twenty-four months, thirty-six months, or sixty months in state prison.

The most common legal defenses for a robbery are:

  • The defendant didn’t threaten force or fear to steal the property
  • The defendant honestly believed he or she had the right to the property
  • The defendant is a victim of mistaken identity
  • The defendant is falsely accused
  1. Trespass

Trespass is defined by Penal Code 602 as entering or remaining in another person’s property without their consent or the right to do so. Intrusion is different from burglary in that it pays more attention to the element of entering the property of another person without their permission. PC 459 burglary, on the other hand, focuses more on the plans or the intention you had in mind when entering the property.

Also, trespassing relates to a burglary in that, a defendant facing a burglary charge can use trespassing as a defense to reduce a burglary charge. When the prosecution in a burglary charge has weak evidence to prove intent to commit theft crime or felony, you can negotiate to be charged with trespassing.

Trespass is a misdemeanor whose penalties are up to 180 days in county jail, or a fine of $1000. An intrusion can be deemed as aggravated if within thirty days of your arrest for trespass you had made threats to the owner of the property you were found trespassing. The punishment for aggravated trespass is a sentence of sixteen months, twenty-four months, or thirty-six months.

The common defenses for trespass are:

  • The defendant had a right to be on the property
  • The defendant had permission to be on the property by the owner
  • The defendant never occupied the property or interfered with activity on the property
  • The property wasn’t fenced or signed for trespass as an infraction
  1. Burglary with explosives

The form of burglary is also referred to as burglary of a safe or vault, or safe blowing. It occurs when a person gains access to a building with a plan to commit grand or petty theft and when someone opens or tries to open a vault or any secure place using explosives.

Penal Code 464 codifies that for one to be charged with burglary with explosive, it won't matter if the building was inhabited or if the burglary took place during the day or night. It differs with burglary laws because penalties for breaking into an occupied house are different from those of entering an uninhabited house. Also, breaking during the day is punished differently from breaking or entering during the night.

Keep in mind that you cannot be guilty of burglary of a safe or vault if you had not first entered the building when you tried opening the safe. The penalties for burglary with explosives conviction are; formal probation, 36, 60 and 84 months in county jail, or a maximum fine of ten thousand dollars.

The one prevalent legal defense that can be used for these cases is that you didn’t enter the building. A defendant can only be guilty of this crime if they entered a building to open a safe or vault while inside. If they didn’t enter the building, an attorney could negotiate to have the charged reduced to possession of burglary tools. The prosecution is likely to agree to this plea bargain because if an offender didn’t enter the house, they would be forced to rely on circumstantial evidence, which can lead to a weak case.

Distinguishing Burglary and Shoplifting

Penal Code 459.5 refers to shoplifting as entering a business premises like a supermarket, during working hours with the plan or purpose to steal property whose value is $950 or less.  Based on this definition, shoplifting can be deemed as a subset of Burglary. For instance, if you enter a commercial establishment during working hours with intent to shoplift, if you take something whose value is less than $950, if arrested, you will be charged with shoplifting. But if the property you were trying to shoplift is worth $950 or more, you will be charged with second-degree burglary.

Although most shoplifters convicted under PC 459.5 get misdemeanor penalties, those who have a previous conviction for serious crimes or those who have registered as sex offenders get punishment for second-degree burglary.

Los Angeles Criminal Lawyer Near Me

It is critical that when you are being investigated or charged with burglary, you take a legal action to avoid repercussions of a conviction. If you have any questions regarding Burglary, its elements, and other offenses that are related to burglary, do not hesitate to call 310-564-2605 to speak to The Los Angeles Criminal Defense Attorney. We will take you through the court process step by step to ensure you achieve a favorable outcome. 

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