California: What Do You Have To Do To Be Accused of Burglary?

California: What Do You Have To Do To Be Accused of Burglary?


Under California Penal Code Section 459, burglary is when you enter a structure with the intent to commit a felony. Burglary is straightforward, but it is important to note that the crime does not require you to enter the structure with the intent to steal something.

You could be convicted of this crime if you intended to commit any felony offense.

Importantly, burglary does not require forced entry. If the structure was unlocked, you could be charged with burglary. You also do not need to have actually committed the felony you intended to commit while in the structure.

First Degree Burglary vs Second Degree Burglary

To be charged with first-degree burglary, you must have unlawfully entered an inhabited residence, such as a house, apartment, trailer or hotel room. You could be charged with second-degree burglary if you illegally entered another type of structure, such as a warehouse, office building or retail store.

If you are charged with first-degree burglary, you are facing a felony that carries a sentence of two, four or six years in state prison and a fine of up to $10,000.

Second-degree burglary is a wobbler offense, meaning it can be charged as either a felony or misdemeanor. As a felony, second-degree burglary carries a sentence of 16 months, or two or three years in county jail. As a misdemeanor, you can be sentenced to a maximum of 364 days in county jail.

There are situations where a court may grant probation rather than jail time. However, with a conviction for 1st degree burglary, the Court cannot grant probation unless it is in the interest of justice and there are unusual circumstances.

To Prove Burglary

For the prosecution to prove a burglary charge, it must be proven that the defendant entered the property without permission and had specific intent to commit a crime once inside. Absent the intent, the prosecution may be forced to change the charge to trespassing or drop the charges completely.

Defence To Burglary

One defense to a burglary charge might be that the defendant had permission to enter the property. If the defendant had permission to be on the premises, it would be hard to prove burglary. If something had been taken, it could have been an after-thought. In other words, once inside, the defendant notices something he/she wants and decides at that moment to take. There was no intent to commit the crime prior to entering the premises. Remember, a necessary element to prove burglary is intent.

Intoxication may be a possible defense. There was no intent to commit a crime once inside but, in an intoxicated state, enters a dwelling.

Every case if different and the specific facts will dictate the type of defense your attorney will pursue.

What To Do If You Are Accused of Burglary?

The first thing to do if you are being accused of burglary is to exercise your constitutional rights. You have the right to remain silent, regardless of whether you have been arrested. Other than providing your identification, you do not have to speak or make any written statements to law enforcement. Politely decline to answer any questions, and if you have not been placed under arrest, you can ask if you are free to go. Remember, anything you say can be used against you, so say no more than absolutely necessary to inform the police that you will not be answering questions.

The only other communication you should have with law enforcement is to inform them that you wish to speak with an attorney.

Leave a Reply