Peter Blair | March 19, 2015 | Uncategorized
California Penal Code 459 defines the crime of burglary as entering a room, locked vehicle, or structure with the intent to commit a felony (or petty theft, in certain circumstances). It does not require forced entry to occur; rather, entering a property with the intent to commit a crime is enough to constitute the crime.
Examples include breaking into a house to steal electronics, entering a retail store to steal an expensive purse, entering a commercial building in order to assault someone, or walking into an open garage to steal a bike.
California law differentiates between first-degree and second-degree burglary. Here is a look at the differences between first-degree and second-degree in California.
First-degree burglary, the more serious of the two, is commonly called “residential burglary.” First-degree charges apply if you burgle any inhabited dwelling, i.e. a place where at least one person lives or sleeps. Whether the specific area burgled is used for living or sleeping is irrelevant; the area burgled need only be connected to and immediately attached to a living and sleeping area. For example, the homeowners may not “live and sleep” in the garage, but since it is attached to the house, it counts as first-degree to enter the garage with the intent to commit a crime.
Places that fall into this “inhabited dwellings” category include the lobby of an apartment building, a hotel room, a garage attached to a house, a dorm room, a tent, and the common laundry room of a residential complex. In order to count as burglary, the building or room involved must not be a residence or business belonging to the alleged burglar; if you own the building or business, you automatically have a legal right to be there and enter the property.
First-degree burglary is a felony. It is punishable by two years, four years, or six years in state prison and fines of up to $10,000. (Alternatively, some offenders can receive probation with up to one year in county jail.) It is important to note that first-degree counts as a serious or violent felony under California’s Three Strikes Law.
Second-degree burglary is commonly called “commercial burglary,” as it applies to rooms and structures where people do not live. Again, there is no requirement of actual forced entry; simply entering a structure or room with the intent to commit a crime constitutes the crime.
Second-degree is a “wobbler,” meaning it can be charged as a misdemeanor or a felony, depending on the circumstances. As a misdemeanor, second-degree is punishable by up to one year in county jail and a maximum fine of $1,000, or misdemeanor probation in certain cases. Felony second-degree burglary is punishable by 16 months, two years, or three years in county jail, plus up to $10,000 in fines.
If you are given felony probation pursuant to a second-degree charge, you will likely be subject to some time in county jail, victim restitution, meetings with a probation officer, and community service. If certain aggravating factors existed in the burglary (such as the use of a weapon or a high level of criminal sophistication), you may not be eligible for felony probation.