Burglary Law in California

Burglary, under California law, is often one of the most misunderstood criminal offenses. Many people confuse burglary with robbery or theft. It is a completely different offense. In California, depending on the facts, burglary can be filed as either a low-level misdemeanor or a serious felony that counts as a strike under California’s three strikes law.

The basic definition of burglary can be found in Penal Code Section 459, which defines burglary as entering an occupied structure, business, or any vessel (e.g. car, boat, train, etc.) with the intent to commit a felony. The meaning of “occupied structure” is very broad. It can mean a house, apartment, store, garage, shed, or even a tent. The nature of the structure is important when determining which degree of burglary is charged.

Here’s a brief overview of how it works. This is not meant to be an exhaustive, comprehensive discussion of the law. If you want to know more about how the law applies to specific case that you or a loved one is facing, give my office a call and I will review the case with you.

First Degree Residential Burglary (Penal Code 459/460)

If a defendant is suspected of entering a house, apartment, motel or hotel room, or any other structure where people are either permanently or temporarily living, and the defendant entered with the intent to commit a felony once inside, then he or she can be charged with residential burglary (also called first degree burglary).

This is very serious under California law. It is a “serious felony” which means it counts as a strike under California’s Three Strikes Law.

The maximum confinement time in a residential burglary case is 6 years. If a person is present in the home during the burglary, the amount of actual time spent in prison increases (85% of the sentence rather than 50% of the sentence). If a minor or an elderly adult is present in the home, an additional year can be added to the sentence.

Also important to note: A common misconception is that you have to “break into” a home for it to be burglary. Not true. You can walk through an open door, or someone can actually invite you into a home. It’s all about the intent. If the prosecution believes they can prove you intended to commit a felony before entering the dwelling, burglary can be filed.

Second Degree Auto Burglary (Penal Code 459/460)

Auto burglary is charged when the prosecution believes they can prove that someone entered another person’s vehicle with the intent to commit any theft or any felony. The crime could be an attempt to steal the car (Grand Theft Auto) or steal items located inside the vehicle.

Auto burglary can be charged as a wobbler. This means it can be charged as a felony or a misdemeanor. If charged as a misdemeanor, the maximum sentence is one year in county jail. If charged a felony, the maximum sentence is a three-year state prison sentence, which will likely be served in a local county jail.

Second Degree Commercial Burglary

As you probably figured out, commercial burglary is entering a commercial building with the intent to commit any theft or a felony. This is most commonly charged when the prosecution believes that someone enters a store to steal merchandise. If the value of the merchandise allegedly stolen is $950 or less, then a commercial burglary cannot be charged. Instead, the misdemeanor crime of shoplifting will be charged.

However, if the amount alleged to be stolen is greater than $950, then the prosecution can file a commercial burglary charge. And remember, commercial burglary can be filed if it is believed the defendant entered a commercial building to commit any felony, not just theft.

What To Do If You Are Charged With Burglary

There are different potential defenses to a burglary charge. Aside from the usual defense of witness identification and alibi witnesses, fighting the substantive charge often turns on the intent at the time someone entered the building. If the intent was formed after the entry, then there is no burglary. Often this becomes a critical area for the defense.

Regardless, if you or a loved one has been charged with any type of burglary in Los Angeles or anywhere in California. The most important thing is to get an experienced criminal defense attorney who can advise and defend you.

Fast action is critical in burglary cases. Call the Law Offices of Jerod Gunsberg at (323) 633-3423 for a free, confidential consultation.