Posted on April 8, 2016

“Burglary” Defenses & Punishment | California Penal Code 459 PC

California burglary involves the entry into an inhabited dwelling, commercial establishment, or vehicle with the intent to commit either a theft crime or felony or both. Burglary is governed under PC 459 and depending on the case, it may be alleged as a strike offense applied to California’s Three Strike Laws. Moreover, Residential burglary is an inherently dangerous felony where in the event someone is killed during the commission of the burglary, you could be charged with murder.

Burglary is categorized into degrees – first degree burglary occurs within a place of habitation – and all other forms of burglary are second degree. Contrary to popular belief, this crime does not require you to actually steal or take property, rather the government is only required to prove beyond a reasonable doubt that you entered and at the time of entry, you harbor the intent to steal or commit a felony. Thus, the crime of burglary (residential, commercial, or auto) can be completed even if you never succeeded with the underlying crime. Furthermore, residential burglary is a straight felony and cannot be reduced to a misdemeanor.

Due to the severity of this offense and your level of jail time exposure, it’s important that you retain a criminal lawyer at the cases earliest juncture – contact a Burglary Defense Lawyer. The following article will address 12 important things you should know about California burglary charges.

1. What is the Legal Definition of Burglary?

California Penal Code 459 defines the crime of Burglary as, “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or building, tent, vessel, railroad car, locked or sealed cargo container, trailer coach, a locked vehicle, aircraft, with the intent to commit grand or petit larceny or any felony is guilty of burglary.”

PC 459 provides the general definition of burglary, however, residential burglary requires you to enter into a place of habitation and not a commercial structure. PC 459 also provides that inhabited means “currently being used for dwelling purposes, whether occupied or not.” Therefore, the entry into a commercial store or warehouse will not suffice for first degree burglary. However, you would likely be charged with second degree commercial or auto burglary.

2. What Must the Government Prove for Burglary?

In order to prove you’re guilty of burglary under PC 459, the government has the burden of proving each of the following elements beyond a reasonable doubt:

1. You entered a structure (home, structure, vehicle, etc);

2. At entry, you harbored the intent to commit a theft and/or felony.

3. What are the Legal Defenses to Burglary PC 459?

• You were mistakenly identified as the burglary suspect via poor lighting, cross-racial identification, or other factors affecting someone’s ability to identify you.

• You did not “enter” the structure / place of habitation. Entry occurs when you cross the threshold plane of the dwelling – e.g., reaching your arm through a window, walking through the front door, walking into the garage.

• The structure was not a place of habitation rather it was a commercial structure.

• You did not harbor the intent to commit a theft or felony at or prior to entry. Instead, you formulated the intent while inside / after entry.

• You were given consent from the owner to take the property from their structure.

• The physical evidence was obtained in violation of your Fourth Amendment right.

• Your statements were illegally obtained by police officers in violation of your Miranda rights.

• Then vehicle you entered into was unlocked. If the vehicle you entered into was not locked, then you are not guilty of auto burglary.

4. What is the Punishment for Residential Burglary?

A conviction for residential burglary carries 2, 4, or 6 years in state prison with a permanent strike on your record. A prior strike can be used against you as a sentencing enhancement if you were to be convicted of any felony in the future. A conviction requires a mandatory state prison sentence unless the court grants you probation. In that instance, you will be placed on probation and the court usually imposes theft counseling, restitution, fines and fees.

5. Should I Speak to the Police?

In all burglary investigations, law enforcement will always attempt to question you regarding the incident. Because proving your “intent” prior to entry, as required for this crime, is difficult to prove for the prosecutor, law enforcement will structure their questions in an effort that you elicit incriminating responses to help prove you harbored the intent to commit a theft crime or felony at or prior to your entry. If law enforcement had a solid case against you, then there would be no reason to question you in the first place unless they need additional evidence. Therefore, if a police officer or detective attempts to contact you to give a statement or “your side of the story”, decline to give any statement and contact the Law Offices of John D. Rogers right away.

6. What is “Commercial Burglary”?

The difference between residential burglary versus commercial burglary is the character of the structure. As noted above, residential burglary requires the entry into a dwelling or structure of habitation whereas commercial burglary is the entry into a commercial structure. Commercial burglary may either be a straight misdemeanor or a wobbler offense. For instance, if you entered a grocery store with the intent to steal $100 worth of goods, you would be charged with misdemeanor commercial burglary. However, if you entered a grocery store with the intent to steal items exceeding $950 in value, then the prosecutor may charge you with commercial burglary as a felony or misdemeanor. Commercial burglary carries less exposure and it’s not a strike offense.

7. What is the Punishment for Commercial Burglary?

Commercial burglary is not a strike offense and the punishment depends on whether you were convicted of a felony or misdemeanor. If convicted of commercial burglary as felony, a conviction carries 16, 2, or 3 years in the county jail whereas a misdemeanor conviction carries up to 1 year in the county jail. If granted probation, the court will impose a stay away order, order you to complete theft counseling and community service.

8. Reducing Commercial Burglary Conviction to a Misdemeanor

If you suffer from a felony conviction for commercial burglary, then you may be eligible to reduce your felony to a misdemeanor under two avenues, via Proposition 47 or PC 17(b). It is more advantageous to reduce your conviction to a misdemeanor under PC 17(b) since it restores all your rights whereas Prop 47 is limited. In either case, the court will reduce the charge to a misdemeanor and you will then be relieved from ever having to disclose that you suffered from a felony conviction. For more information, contact the Law Offices of John Rogers to discuss your reduction eligibility.

9. What is Auto Burglary?

Auto burglary is governed under PC 459 but requires the entry into a locked vehicle for the purposes of committing a theft or felony therein. It is not a strike offense, and it’s a wobbler offense which means the prosecutor may elect to charge you with a felony or misdemeanor. If you’re convicted of felony auto burglary, you face 16, 2, or 3 years in county jail whereas a misdemeanor conviction carries up to 1 year in the county jail. Fortunately, if you’re convicted of felony auto burglary, you may be eligible to reduce your felony to a misdemeanor under PC 17(b).

10. Burglary Expungement

If you suffer from a burglary conviction and you were not sentenced to state prison, then you may be eligible to expunge your conviction under PC 1203.4. Certain conditions must be fulfilled in order to obtain this remedy. For instance, you cannot be on probation for any offense, you completed all your court ordered obligations, and paid all outstanding fines and fees. If your expungement petition is granted, the court will withdraw its finding of guilt, enter a not guilty plea, and dismiss the case. You will then be released from all penalties and disabilities resulting from your conviction. An expungement however will be delete or nullify your admitted strike however. Contact the Law Offices of John Rogers for more information about obtaining an expungement for your burglary conviction.

11. What are Examples of Burglary?

• Entering someone’s garage to steal a bicycle.

• Opening someone’s window and reaching to take their property.

• Deceiving someone in order to gain consent to enter for the purposes of committing a felony or theft. For example, representing that you’re an employee from the water department and you requested to check the plumbing pipes inside the home.

• Unlocking a vehicle for the purposes of taking it or taking an item inside.

• Entering a grocery store with the intent to steal a bottle of alcohol.

12. Free Criminal Defense Consultation

If you’ve been arrested, charged, or are under investigation for burglary under PC 459, contact Burglary Defense Lawyer John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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