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Burglary law in California can be a very complex area of the law.  You need an experienced Attorney to help you.  With more than 13 years of Criminal Defense experience I can help you throught the challenges of being charged with Burglary. 

California defines Burglary under Penal Code section 459 "entering a structure with intent to commit a Felony or theft"

There is no breaking requirement for Burglary only that you entered with intent to commit a Felony therein. 

Burglary is a Wobbler which means it can be charged either as a Felony or a Misdameanor. 

The penalties for Burglary are harsh and it is a strike.  However, due to difficulties in proof often Burglaries are reduced to lesser charges by prosecutors.

 

Below I will go over several areas of what the prosecution must prove as to Burglary.

1. What is the Difference between First Degree Burglary and Second Degree Burglary.

2. How does the Prosecutor Prove that I committed Burglary under Penal Code 459.

3. Examples of Burglary

4. California Burglary and related offenses

5. Penalties, Punishments, and Sentencing for California Penal Code 459PC Burglary.

6.  What are the defenses to Burglary

 

If after reading this article you have any questions please feel free to call us.

 

1. WHAT IS THE DIFFERENCE BETWEEN FIRST AND SECOND DEGREE BURGLARY

As previously stated Burglary is defined as entering a structure with intent to commit a Theft or Felony therein. 

FIRST DEGREE BURGLARY

First Degree Burglary is when the above elements are met and the structure was a dwelling house.  Or what is commonly referred to as a place where someone lives or sleeps.

SECOND DEGREE BURGLARY

Is entering a place that is not a dwelling house with intent to commit a theft or Felony therein. 

2.  How Does the Prosecutor prove that I have committed Burglary Under PC 459 1st Degree?

 

the prosecution must prove the following two facts.

1. that you entered a building

2. when you entered the building you did so with the intent to commit a theft or felony therein.

lets break this down.

for the purposes of this statute a dwelling house includes

traditional homes

mobile homes

apartments

ENTRY

Any part of the body enters the home

or an object under the control of the person entering

For example if you reach into an open window in your neighbors house you have committed a Burglary.

INTENT

This is where it gets tricky, the prosecutor must prove that you intended to commit a burglary at the time that you entered the dwelling.  sometimes that is clear sometimes it is not.

if you are entering at night with burglary tools and you have items taken from the home outside when the police arrive then your intent is clear. 

Burglary tools are anything that can assist you in the burglary.

your intent may not be so clear if you are committing petty theft. unless you walked in with scissors or other tools to help you in commiting the Petty Theft. 

 

FIRST DEGREE BURGLARY IS ALWAYS A FELONY AND A STRIKE OFFENSE

SECOND DEGREE BURGLARY CAN BE CHARGED AS BOTH A FELONY OR A MISDEMEANOR

This depends on the facts of the case and your prior history is any. 

if you are convicted of second degree burglary you will be either given probation or 16 months two years or three years in state prision depending on your prior history and the facts of the case.

if you are convicted of First Degree Burglary you face two, four or six years in the state prison or in unusual circumstances probation. 

Many times we have a psychologist do a full evaluations of our clients to determine if they have a mental health diagnosis that would benefit from treatment if treatment was ordered as part of probation. 

 

If you or a loved one have been accused of Burglary call us to get the help you need.

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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