Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?
Burglary crimes cover a whole host of different types of offenses, ranging from you (allegedly) sticking your hand through your neighbor’s open kitchen window to grab her purse off a nearby counter, all the way up to you bursting into someone’s home in the middle of the night while he/she is sleeping for the purpose of pistol-whipping him/her (for example).
These crimes are typically prosecuted under the following Penal Code sections:
First-Degree Residential Burglary (California Penal Code section 460(a); California Penal Code section 459)
Second-Degree Commercial Burglary (California Penal Code section 460)
The common thread in these different types of burglary crimes is the critical element that prior to entering the residence, structure, or vehicle (see below), you specifically intended to either steal something therefrom or to commit any felony therein.
See People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042.
Also, as indicated above, in order to be convicted of burglary, you only need to briefly stick a part of your body (or an object attached to your body or under your control) past the structure’s outer perimeter or vehicle to steal something or to commit a felony. For example, a window screen is considered to be an outer perimeter for this purpose.
See People v. Valencia (2002) 28 Cal.4th 1, 12–13.
Similarly, if the residence you intended to burglarize is on a second (or higher) floor, then that apartment’s balcony’s railing is also considered to be its outer perimeter.
Further, a structure can be anything that has four walls and a roof, including a storage unit, a chicken coop, a mobile home/trailer, house boat, etc. It also includes a boat or a vehicle.
See In re Amber S. (1995) 33 Cal.App.4th 185, 187.
Also as indicated above, the crime of burglary is divided into two degrees, which is typically left to the jury to decide (though, of course, it’s the prosecutor who determines what degree to charge you with).
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1700 (“Burglary — Pen. Code § 459).
Anything else is considered to be Second-Degree Burglary (California Penal Code section 460(b)).
See CALCRIM number 1701 (“Burglary: Degrees — Pen. Code § 460”).
Second-Degree Burglary – i.e., Commercial Burglary – can be charged as either a misdemeanor or a felony, depending on the particulars of your case. Therefore, this type of crime is referred to as a “Wobbler” (California Penal Code section 17(b)).
Certain burglary crimes can be charged as Strike Offenses (California Penal Code section 667(a)&(b)), which can result in many years being added to your underlying prison term (see below).
Specifically, First-Degree Residential Burglary (California Penal Code section 460(a)) will typically be charged as a Strike if someone was home at the time.
So even if no actually violence or harm was inflicted on anyone therein, the fact that the potential for violence is so high in this circumstance results in First-Degree Burglary being classified as a “Violent Felony” under California Penal Code section 667.5(c)(21).
And in the event you do severely injure someone or if you used a gun during the residential burglary, you will be charged with an additional strike under Penal Code section 667.5(c)(8).
Conversely, if you received a prison sentence for a non-violent burglary — i.e., Second-Degree Commercial Burglary (California Penal Code section 460(b)) – you could be eligible for a premature release therefrom, thanks to a California Supreme Court ruling made in late 2020.
In that decision, the court ratified a 2016 ballot measure that was approved by California voters to qualify all non-violent imprisoned felons for potential early release. This ballot was introduced two years earlier in 2014 for the purpose of alleviating the state’s overcrowded prisons.
Your attorney should be able to file a petition with your sentencing judge which, if granted, would put you before the parole board, who, of course, retains the final authority as to whether to grant you early release.
California Penal Code section 459 (Burglary in general)
If you enter any inhabited dwelling or locked vehicle with the intent to commit grand larceny/theft, petty larceny/theft, or any felony, will be charged with burglary under this provision.
If the conviction is for Residential Burglary, then you’ll be charged with a felony.
If the conviction is for Commercial Burglary, then you’ll be charged with a felony or a misdemeanor.
California Penal Code section 460(a) (First-Degree Residential Burglary)
This statute explicitly separates burglary into two degrees: first degree for residential, and second degree for commercial.
California Penal Code section 460(b) (Second-Degree Commercial Burglary)
California Penal Code section 464 (Burglary of a Safe or Vault (“Safecracking”))
If you enter any structure, regardless of whether or not anyone’s inside it, with the intent to commit any crime, regardless of the time of day/night, and you open or try to open a vault/safe/other locked container by using a “burn bar”/acetylene torch/thermal lance or similar implement that can cut through steel/concrete/or similar material, or by blowing up the vault/safe/other locked container by using an explosive device/material, you will be charged with a felony hereunder.
California Penal Code section 459 (Burglary in general)
If you’re convicted of felony Residential Burglary, you’ll get a prison term of 24, 48, or 72 months.
If you’re convicted of felony Commercial Burglary, you’ll get a prison term of 16, 24, or 36 months.
If you’re convicted of misdemeanor Commercial Burglary, you’ll get up to 12 months in the county jail (assuming the judge even requires you to go to jail).
California Penal Code section 464 (Burglary of a Safe or Vault)
If you’re convicted of this particular felony, you’ll be sentenced to a three-year, five-year, or seven-year penitentiary term, pursuant to California Penal Code section 1170(h)(1).
These are all effective defenses to the burglary charges discussed above:
See People v. Frye (1998) 18 Cal.4th 894, 954.
See also CALCRIM number 1700 (“Burglary — Pen. Code § 459”);
CALCRIM number 1863 (“Defense to Theft or Robbery: Claim of Right — Pen. Code § 511).
If you are charged for aiding and abetting the burglar, then the following defenses apply:
CALCRIM number 1702 (“Burglary: Intent of Aider and Abettor”).
See also CALCRIM number 401 (“Aiding and Abetting: Intended Crimes”).