Burglary is committed when a person enters a building with the intent to commit a felony. If the building associated with your complaint is a house that is inhabited by other people, you will be charged with first degree burglary. It is considered second degree burglary for any other type of building. First degree is a felony and is punishable by up to six years in state prison. Second degree burglary is considered a “wobbler.” This means that it can be charged as a felony or a misdemeanor. If the second degree burglary is charged as a felony, you can be punished by up to three years in state prison. If the second degree burglary is charged as a misdemeanor, the maximum punishment is up to one year in state prison. In most cases, the second degree burglary will be charged as a felony, and you will need a burglary attorney to reduce it to a misdemeanor through negotiations.
If you’re charged with burglary involving entering someone’s house, you will most likely be charged with First-Degree Burglary. First-degree burglary is a felony and is punishable by imprisonment in state prison for a period of two, four, or six years.
Any burglary not involving someone’s home is considered a second-degree burglary. Second-degree burglary is a “wobbler.” This means that the prosecution can charge the crime as a felony or a misdemeanor. If the burglary is charged as a felony, you’re facing state prison time of 16 months, two years, or three years. If the burglary is charged as a misdemeanor, you’re maximum punishment is one year in county jail. You can bet the prosecution will charge the crime as a felony in most cases. It is important to have a burglary defense attorney to get the charge reduced to a misdemeanor to lower your maximum punishment.
If you are charged with Burglary, the following contains the elements that the prosecution must prove and the instructions that the jury will read:
The defendant is charged with burglary in violation of Penal Code section 459.
To prove that the defendant is guilty of this crime, the People must prove that:
- The defendant entered a building/room within a building/locked vehicle AND
- When (he/she) entered the building, (he/she) intended to commit a theft or any other felony.
To decide whether the defendant intended to commit a theft or any other felony, a separate instruction on the specific crime will be given. A burglary was committed if the defendant entered with the intent to commit theft or any other felony. The defendant does not need to have actually committed the theft.
There are a number of defenses to a burglary charge. It is important to consult with a Southern California burglary defense attorney to see what defenses you have since each case is different. Your available defenses will be determined by the facts of your case. Below are some common defenses. Remember that it is the prosecution’s burden to prove the case. Your chances of winning your case will increase with a plausible defense.
Entering a Building Requirement
The first element required for a burglary charge is that you entered a building, home, or locked vehicle. If you did not enter a building or vehicle, you cannot be convicted of burglary. If you were inside a building, their needs to be some type of evidence you were in the building, whether it is video surveillance or witnesses. If there are alleged witnesses, they must be able to identify you.
No Intent to Commit a Felony
The prosecution must prove that you had the intent to commit a theft or felony when you entered the building. This will depend on the facts of the case. Some situations will be easier to defend than others. Your intent to commit a theft or felony must have been formed at the time you entered the building. If your intent was formed after you entered, technically this is not burglary; however, it probably wouldn’t stop the prosecution from charging burglary.
Not going through with the theft or felony
Unfortunately, it is not a defense to a charge of burglary if you did not follow through with your intent on committing the theft or felony. The crime of burglary is committed when you entered the building with formed intentions of committing the crime. If you did follow through with the theft or felony, that can be charged as an additional crime which means you may face additional jail time. These are just a general list of common defenses, if you’re being charged with burglary, it is important that you speak with an experienced Southern California burglary defense attorney. I will aggressively defend you in court and fight to get your case dismissed. Call the Law Offices of Nam Q. Doan today at (714) 248-DOAN (3626).