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The crime of burglary is looked upon with particular distaste by California courts and law enforcement, because the elements of the offense involve a theft crime or felony which is perpetrated in the home or business of another.

As keepers of public safety, the Courts and law enforcement aggressively protect the sanctity of private homes and vigorously prosecute crimes committed against the homes or businesses of the victim, with the mission to protect the public in their own homes.

Understanding Burglary Laws

There are some common misconceptions as to what constitutes burglary under California law. The burglary need not be in a house or commercial building. It need not take place at night. Actual physical entry of a body part is not necessary as long as some object under your control used to facilitate the crime is on or within the premises.

Also, the underlying crime which an individual intends to commit or committed within the structure need not be a theft crime. It could be a violent crime such
assault with a deadly weapon,
rape, murder, kidnapping, or
arson.

In order to be charged with burglary under Penal Code §459, the prosecution must prove you entered a structure, not your own, with the intent to commit a crime inside the structure.

California Penal Code §460 defines the degree of burglary which the defendant may be charged with depending on the circumstance of the offense and states in relevant part:

  • Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.
  • All other kinds of burglary are of the second degree.

Possible Burglary Penalties

As Penal Code §460 states, all burglaries involving nonresidential and commercial structures will be charged in the second degree. A second degree burglary charge is what is known as a “wobbler”, meaning it can be charged as either a misdemeanor or a felony.

If charged as a felony, the person could receive up to 3 years in state prison and a fine of $10,000. If charged as a misdemeanor, sentencing could range from simple probation to 1 year in jail and a fine of $1,000. The prosecution will have the sole discretion to charge the offense as a felony or a misdemeanor.

The Importance of Hiring an Experienced Attorney

Past criminal history, circumstances specific to the case, such as harm to the victim, and sophistication of the crime will be critical factors considered by the prosecution in its decision of how to charge the offense. This is why it is critical that you contact a San Diego burglary lawyer as soon as possible so that they may consult with you about your options and then begin negotiating with the prosecution to charge the offense as a misdemeanor rather than a felony.

This sooner you contact a skilled and experienced theft attorney, the better your chances will be negating the prosecutions claims that this intent existed, or to negotiate a successfully reduced sentence. Whatever facts of your specific case may be, consulting with attorneys at The Law Office of Marc S. Kohnen will allow you to determine your legal options and the best steps to take in defending your case. Contact the firm today to discuss your rights and possible defenses.