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KATHERINE E. LOTHROP
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WHAT IS BURGLARY?
In California, a person may be charged and found guilty of the crime of burglary if he or she enters a structure (i.e., house, room, commercial building, locked vehicle, etc.) with the intent to commit a theft or any felony. In other words, if a person enters such a structure, while intending to commit a grand theft (felony) OR petty theft (misdemeanor) OR while intending to commit any other felony once inside, he or she is guilty of burglary. The prosecutor does not have to prove that the defendant actually "committed" the intended crime. It is only necessary to prove that the defendant "intended" to commit the crime once inside. However, if the evidence shows that the defendant actually "committed" or "completed" the intended crime (i.e., grand theft) after entry into the structure, he or she will then be charged with both crimes --- burglary and grand theft.
The California Penal Code no longer requires that a "breaking and entering" take place in order to be charged (or convicted of) burglary. Thus, a defendant may be convicted of this crime even if he or she walked through an open door, with the owner's consent, as long as the defendant had the intent (at the time of entry) to commit a theft or other felony. Note that the "other felony" may be a "wobbler," but a straight misdemeanor will not suffice. Therefore, unless the defendant had the intent to commit a theft at the time he or she entered the structure, he or she must have intended to commit either a straight felony or a "wobbler" at the time of entry. If the defendant intended only to commit, for example, "simple battery," he or she could not be convicted of burgary because simple battery cannot alternatively be charged as a felony.
1ST DEGREE vs. 2ND DEGREE BURGLARY:
First Degree Burglary: The burglary of an inhabited dwelling house (or other inhabited specified structure) is burglary of the first degree. According to California Penal Code section 459, "inhabited" means currently being used for dwelling purposes, whether occupied or not. Thus, if the burglary took place in a home or other structure where persons typically reside, it is burglary of the first degree --- even if nobody was inside at the time. First degree burglary is commonly referred to as "residential burglary." First degree burglary is always a "serious felony" and a conviction for this offense is punishable for up to six years in California State Prison. Furthermore, first degree burglary is a "strike" under California Three Strikes Law.
Second Degree Burglary: All burglaries that are not burglary of the first degree are of the second degree. Second degree burglary is commonly referred to as "commercial burglary," and is considered to be a "wobbler." In other words, burglary of the second degree may be charged as either a misdemeanor or felony, depending upon the specific facts and circumstances unique to the individual case, as well as other factors which may include the criminal history, if any, of the accused.
DEFENSE OF BURGLARY CHARGES:
If you or your loved one has been arrested or charged with burglary, it is imperative that you seek competent defense counsel as soon as possible. Although the penalities for a burglary conviction are severe, an attorney skilled in handling these cases may be able to get the charge dismissed or reduced, because the prosecutor will often have great difficulty in proviing some of the elements of the crime.
Additionally, there are many potential defenses that may be presented by an attorney with expertise in handing these matters, each of which depends on the specific facts and circumstances of the individual case, as well as what, if any statements were made by the accused to law enforcement officers or any other persons regarding the alleged burglary.
DISCLAIMER: The Law Office of Katherine E. Lothrop specializes in criminal defense matters, while vigorously defending clients throughout Northern California to include the following counties: Sacramento, Placer, El Dorado, Yolo, Yuba, Sutter, Solano and San Joaquin. This firm does not make any claims, promises or guarantees as to the information provided herein, as applied to the specific facts and circumstances of each individual case. The information provided throughout this website contains general information only, and should not be construed as a substitute for individualized advice from competent legal counsel.
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