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Burglary Charges in California

Burglary involves entering a building with the intended purpose of stealing something or committing a crime. Burglary is a serious charge in California and can result in misdemeanor or felony charges, depending on the type of building. A burglary conviction can result in jail time and expensive fines. If you have been charged with burglary, talk to your experienced East Bay criminal defense attorney to understand your rights.

Burglary in California PC 459

Under California Penal Code §459, burglary involves entering any house, room, apartment, or other buildings with the intent to commit grand or petit larceny or any felony. Burglary can be divided into first-degree burglary and second-degree burglary. The difference is the type of building involved.

Under California Penal Code §460, burglary of an inhabited dwelling, vessel, floating home, trailer coach, or the inhabited portion of any building is burglary in the first degree. All other kinds of burglary are of the second degree.

Burglary Penalties in California

Burglary in the first degree (burglary of an inhabited building) is a felony in California. A conviction for first-degree burglary can include two to six years in prison.

Burglary in the second degree (non-inhabited building) is a wobbler in California. This means it could be charged as a felony or a misdemeanor. As a misdemeanor, second-degree burglary can include fines and up to a year in jail. As a felony, second-degree burglary can include up to three years in prison.

“Residential or Commercial Building”

Burglary includes not just homes or stores but can include just about any building or structure. An inhabited building, for the purpose of a burglary charge, can include:

  • Dwelling,
  • House,
  • Apartment,
  • Hotel rooms,
  • Vessel,
  • Floating home,
  • Trailer coach,
  • Tent,
  • Inhabited camper, or
  • Inhabited portion of a building.

“Inhabited,” means any building or structure currently being used for dwelling purposes, whether occupied or not. It does not matter if there was actually anyone inside the building at the time. For example, entering a home when the burglar knows the residents are on vacation is still considered burglary of an inhabited structure.

Non-inhabited structures can include private businesses, public buildings, or other structures, including:

  • Shop,
  • Warehouse,
  • Store,
  • Mill,
  • Barn,
  • Stable,
  • Outhouse,
  • Ship,
  • Railroad car,
  • Sealed cargo container,
  • Aircraft, or
  • Mine.

“To Commit a Felony or Theft”

Burglary requires the individual to enter the building with the intent to commit theft or any felony. The individual has to intend to commit a felony or theft at the time he or she enters the building. Entering the building for a normal business purpose and later deciding to commit a crime may not be considered a felony. 

For example, a person goes to an open house to look at buying the property. Once inside the house, that person notices a valuable collectible figurine on display. The person takes the figurine and leaves the open house. This may not be considered burglary because there was no intent to commit a crime when the person entered the building.

Most burglaries involve theft or attempted theft. However, burglary can include other felonies, including entering a building with the intent to commit:

Attempted Burglary Charges

Burglary only requires the intent to commit a felony or theft. Even if the crime is never completed, entering the building with the intent to commit a crime is enough for a burglary charge.

For example, a burglar enters a jewelry store to take some jewels. After entering the store, the burglar changes his mind and leaves. The burglar may still be charged with burglary because he had the intent to steal the jewels when entering the building.

Possession of Burglary Tools

Under California Penal Code 466, simply possessing tools used in burglaries is a crime. It is a misdemeanor in California to possess burglary tools, even if no burglary was committed. Burglary tools can include:

  • Lock-picking tools,
  • Crowbars,
  • Screwdrivers,
  • Vice grips,
  • Slim jims,
  • Bump key, or
  • Master key.

Generally, possessing these tools for some valid reason may be a defense to charges of possession of burglary tools. For example, a locksmith may be expected to carry around lock-picking tools while on the job or a construction worker may have tools like screwdrivers or vice grips in their tool belt.

Defense to Burglary Charges

There are a number of possible defenses to criminal charges for burglary. If there was no intent to commit a felony or theft, entering a building may not be considered a felony. For example, a hiker is out in the mountains when a storm suddenly hits. Seeking shelter, the hiker breaks the lock of a shed in order to wait out the storm. The hiker broke into the building but the hiker did not intend to commit any crime inside.

Burglary charges often involve cases of mistaken identity. A witness may have misidentified an innocent person as the burglar. This can be a problem when the burglary happens at night and the burglar has his or her face covered. Talk to your attorney if you are charged with burglary because of mistaken identity.

Entering a commercial building to steal some merchandise is generally considered shoplifting instead of burglary. Shoplifting is generally a lesser offense and may have reduced penalties. The difference between shoplifting from a store and burglarizing a store generally involves entering an open business and intending to steal merchandise worth $950 or less. Entering the business after closing time may be a burglary.

Talk to your East Bay criminal defense attorney about your case if you are facing charges of burglary in California. Your lawyer will be able to investigate your case, identify the best defenses, and fight to keep you out of jail.

East Bay Criminal Defense Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing criminal burglary and theft charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick today.

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