Burglary is a violation of Penal Code Section 459 and depending on the type of burglary, it can be classified as a misdemeanor or a felony.
The elements of burglary are:
- An entry by a defendant into a property;
- The property is a building or structure;
- At the time the person enters, there is intent to commitment a theft or another felony.
A first degree burglary is the breaking or entering into a house in order to steal or commitment a felony. This is a violation of Penal Code Section 460(a). This crime is a felony, and is also considered a “strike” under the “three strikes law”. Most of the time when a defendant commitments a first degree burglary or residential burglary, they will be sentenced to state prison. However, the Law Offices of Stull & Stull has had cases where individuals have committed these types of offences and have received felony probation, without requirement of prison. This however, is the exception, not the standard.
Second degree burglary is all other types of burglary. It typically is where someone enters a premise other than a residence (store, warehouse or other building) in order to steal or unlawfully remove property. The key to determining the level of crime committed in a burglary is the intent of the act (for example: if a person had the intention of entering a Target store and stealing a pack of gum, it could be considered a second degree burglary – and also a petty theft). The key issue to be determined is what the defendant’s intent was when they entered the building.
The punishment for first degree burglary is fine and imprisonment in a state prison for 2, 4 or 6 years. The punishment for second degree burglary is by imprisonment in the county jail not exceeding 1 year – or state prison for 16 months, 2 years or 3 years.
There are many legal defences to burglary and if you are charged with this crime, please contact our offices as soon as possible to start preparing your defense strategy. Remember the consultation is free.
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