Burglary

BURGLARY  (PC 459)

Burglary in the state of California, Penal Code 459 PC, is different from theft and robbery.

PC 459 is when a person, upon entering a structure intends to commit a crime. Burglary is a wobbler, meaning it can either be charged as a misdemeanor or a felony depending on a defendant’s past and the details of the crime.

Burglary is commonly referred to as breaking and entering but the act of “breaking” into a structure is not necessary. A person can be charged with burglary even if they walked through open doors, the important factor however is when they walked through those open doors, did they have the intent to commit a felony?

Two Different Types of Burglary

There are two varying degrees of burglary. First degree residential burglary is always a felony and is commonly referred to as residential burglary. First degree residential burglary refers to burglary that takes place in an inhabited dwelling, for instance, a home, apartment, house boat, ultimately any place where people can live; reference PC 459 for a full list of inhabitable structures.

SENTENCING FIRST-DEGREE RESIDENTIAL BURGLARY:

Two (2), four (4), or six (6) years in state prison

Up to $10,000 in fines

Probation will not be offered

Second degree burglary is commonly referred to as commercial burglary because it’s a burglary that takes place in any structure other than an inhabitable dwelling. Second degree burglary is a wobbler, meaning it can be charged as either a felony or as a misdemeanor.

SENTENCING- SECOND-DEGREE BURGLARY:

If charged with second degree burglary as a felony:

16-months, two (2), or three (3) years in a state prison

Up to $10,000 in fines

If charged with second degree burglary as a misdemeanor:

Up to one (1) year in a county jail

Up to $1,000 in fines

ENHANCEMENTS:

An additional three (3), five (5), or seven (7) year state prison sentence when explosives or torches are used for either first degree or second-degree burglary.

An additional three (3) to six (6) year state prison sentence if “great bodily injury” was inflicted on another.

An additional one (1) to two (2) year state prison sentence if first degree burglary was knowingly committed on an individual who:

  • Was over 65 years of age or under 14 years of age
  • Blind or deaf
  • Mentally disabled
  • Paraplegic or quadriplegic

Occupied Dwelling/Structure

If there was a person in the house when a defendant committed first degree burglary then the defendant will get an additional three (3) year state prison sentence for each California violent felony on his or her record.

NOTE:  If defendant has not committed a violent felony within ten (10) years this rule doesn’t apply.  If a defendant has committed any other felony within five (5) years of a felony burglary conviction, either first or second degree, then one (1) additional year will be added to his or her sentence.