Residential Burglary: California Penal Code 459

Generally speaking, burglary, as defined under Cal. Penal Code Section 459, is the act of entering into a building with the intention of stealing property or committing another felony. A burglary conviction can result in incarceration, significant fines, and a permanent criminal record. Under California law, entering into a building with the intent to commit a theft or some other felony is classified as Burglary.

Residential or First Degree Burglary

First Degree burglary includes unlawfully entering into a home, attached garage, boat, floating home, trailer, railroad car, aircraft, warehouse or the inhabited portion of a building. The theft or other felony does not have to be actually committed; only the entry with intent to commit the theft or the felony has to be proved. First Degree Burglary is considered a serious felony and a “Strike” in California.

Burglary Penalties

First Degree Burglary is punishable by 2, 4 or 6 years in a state prison except in very unusual cases where probation and county jail are ordered. First Degree Burglary is also a “Strike” under California’s “Three Strikes and You’re Out” Law. What this means is that if you commit any other felony (including some minor drug offenses and felony petty theft) in the future, your sentence on the new case is doubled.

Defending Burglary Charges

The key to burglary is intent of the person entering the residence or other occupied structure. If the person intends to steal or commit a felony when entering, then burglary has occurred. The prosecutor does not have to prove that the theft or felony occurred; only that it was intended at entry. Proving intent may be tricky especially if the theft or felony was not committed. If the requisite intent cannot be proved then the Defense has a chance of defeating the charges.

Another common defense to burglary is that the accused had a legitimate reason for being on the premises in the past. If fingerprints were lifted at the crime scene then the prints could be explained by a previous visit to the location.

The defense of mistaken identity could be raised in certain cases. Having a strong and believable alibi would be critical in this situation. Any home or store surveillance videos could help validate the defendant’s alibi.

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