Under California Penal Code Section 459, burglary is the act of entering a residential or commercial structure with the intent to commit a theft or felony. The structures covered under the Penal Code include houses, apartments, shops, as well as less common types of property such as tents, outhouses, and floating houses.
The California Penal Code Burglary Laws divide the crime of burglary into 1st-degree or 2nd-degree burglary. 1st-degree burglary is entering a residential structure, while 2nd-degree burglary includes all other structures, such as commercial buildings and locked vehicles.
The entering must be done with the intent of committing a theft or felony. For example, you can be charged with burglary if you enter a structure with the intent to commit a theft or felony, even if you did not actually commit the theft or felony.
If you have been accused of 2nd-degree burglary, it is important to contact an experienced lawyer who can help defend you. The Orange County 2nd-degree burglary lawyers at The Law Offices of Bryan R. Kazarian have years of experience and will guide you through the legal process every step of the way.
As mentioned above, the difference between 1st and 2nd-degree burglary depends on the kind of structure that the accused has entered.
If the accused has entered a residential structure, they will always be charged with 1st-degree burglary. This includes homes, apartments, guest houses, hotels, or recreational vehicles. On the other hand, 2nd-degree burglaries refer to all other types of non-residential structures. These crimes are commonly referred to as ‘commercial burglaries’ and include commercial structures, such as stores, businesses, animal enclosures, locked vehicles and loading docks.
To prove that someone has committed 2nd-degree burglary, the prosecutor must prove the following beyond a reasonable doubt:
- The accused purposefully entered a commercial structure without permission; and
- The accused entered the commercial structure with intent to commit a theft or felony.
1st-degree burglary is always charged as a felony. However, 2nd-degree burglary is a so-called “wobbler.” A “wobbler” means that the prosecutor can decide whether to charge the crime as a misdemeanor or as a felony which provides very different penalties.
According to California Penal Code Section 459, 2nd-degree burglary can be charged at the prosecutor’s discretion as either a misdemeanor or a felony.
To make this determination, the prosecutor often looks at the accused’s criminal history, the egregiousness of the facts surrounding the crime, and the quality of evidence against the accused.
If convicted of 2nd-degree burglary as a misdemeanor, the penalties include the following:
- Up to one-year imprisonment in the County Jail
- A fine of up to $1,000
If convicted of a felony 2nd-degree burglary, the penalties include the following:
- One year and four months, two years or three years in a California State Prison to be served in the county jail;
- A fine of up to $10,000;
In most cases, the judge will grant summary probation for those convicted of misdemeanor 2nd-degree burglary and formal probation for those convicted of felony 2nd-degree burglary.