-In Penal Code Section 459, California law defines
burglary as entering a structure with the intent to
commit either a theft or some felony inside.
Now a lot of people confuse burglary with robbery and
theft, and they're actually three very different concepts.
Robbery is when you use violence or threats of
violence to take something from somebody's immediate
presence, like a mugging or a hold-up.
Theft is basically anytime you steal something of value.
Whereas burglary, on the other hand, is when you enter a
structure--
and that could be a house, it could be a business, it could
be a factory--
but entering a structure or a building with the intent to
commit theft or a felony inside.
-For example, a burglary, under California Penal Code
459, can be a situation where somebody breaks into a home
with the intent to steal clothing items, jewelry,
whatever else might be present.
Another example of burglary can be going into a bank to
cash a check that you know is bad.
A different example of burglary can be a situation
where a person goes to a child-care facility with the
intent to commit assault on a child.
Now that isn't theft, but you are going there with the
intent to commit a felony, and therefore, it is burglary.
-Under California Penal Code 459, merely entering a
structure with the intent to commit a theft, or any felony,
once you're inside constitutes a burglary.
So really, entry is the crux of the crime here.
For example, say you enter your neighbor's home with the
intent to steal his computer.
And when you're inside his home, you realize that you
can't find the computer and it's not there.
That still constitutes the burglary, because you entered
the home to commit a theft of his computer
once you were inside.
So it doesn't even matter that you didn't actually
complete the crime.
Thus, entry is really the most important
element of a burglary.
-There's also a lot of confusion between burglary and
the idea of breaking and entering.
The fact is that in California law, breaking and entering is
not an element of burglary.
What that means, essentially, is that you could be convicted
of burglary even if there was no forced entry.
And to give you an example, suppose I'm walking down the
street, and I look inside a house.
And the front door is wide open, and inside the door is a
bicycle that I want to steal.
So I walk through that open front door, take the
bicycle, and leave.
Now in that situation, there was no forced entry.
I didn't even have to open the door.
I mean, even though the door was wide open, the mere fact
that I entered the house or the structure with the intent
to commit a theft inside is enough to make it a burglary.
-Under California Penal Code 459, first degree residential
burglary is treated much more seriously
than commercial burglary.
We treat our homes as our castle, and therefore,
residential burglary has more harsh penalties.
It's always a felony.
It is always a strike.
A person can face up to six years' incarceration as well
as a $10,000 fine for this charge.
A person will be liable for entry into any residence.
It doesn't have to be a house in the traditional sense.
It could be a hotel where a person is staying.
Here in California, there was even a case where a person was
liable for residential burglary for breaking into a
tent where a homeless person was living.
It was a structure.
It had four sides.
It had a roof.
A person was living in there.
That makes it residential burglary.
-By contrast, California Penal Code 459 treats second degree
burglary, otherwise known as commercial burglary, a little
less severely.
Commercial burglary is where you enter a business, or a
factory, or someplace where you know no one resides.
Here in California, commercial burglary is what's called a
"wobbler," which means the prosecutor can choose to file
it as either a felony or a misdemeanor, depending on the
circumstances of the case.
If you're convicted of felony commercial burglary in
California, you face up to three years in state prison.
However, if you're convicted of a misdemeanor commercial
burglary, you only face up to one year in county jail.
-Burglary is one of those crimes that can be
surprisingly difficult for the prosecutor to prove in court.
And in fact, lots of innocent people get wrongfully accused
of burglary, and sometimes,
tragically, wrongfully convicted.
The good news is that here at Shouse Law Group, we've had a
great record of success over the years in fighting burglary
charges and helping our clients to get those charges
reduced or even dismissed.
-One common defense to burglary is what we call
"after-acquired intent." What that means is that you did not
have any intent to commit a theft, you did not have any
intent to commit a felony, until after you were already
inside the structure.
For example, you walk into Bloomingdale's.
You're just going to do some shopping.
But you find this outfit, and you fall in love with this
outfit, but you can't afford that outfit.
And for some reason, spontaneously, you
decide to steal it.
So you walk out of the store with that
outfit and without paying.
Sure you're likely liable for a theft, but
that is not a burglary.
And it is not a burglary because when you walked into
the store, you did not yet have any intent to steal.
-Another common defense in a burglary case is
misidentification.
Mistaken eyewitness ID is the number-one reason for wrongful
arrests and convictions across the United States.
And it certainly results in a lot of innocent people getting
arrested for burglary.
It's very common that a burglary occurs in the
vicinity, and you just happen to match the description that
an eyewitness gives to the police, and you're arrested.
Now it's a defense attorney's job to show the prosecutor,
the court, and even possibly a jury that this is a case of
mistaken identification and that you were not actually the
perpetrator of this crime.
-Another common defense to a burglary charge in California
is what we call being merely present.
What that means is you may be hanging out with some people
who decide to commit a burglary
of a home or a business.
But it wasn't your idea, and you don't really participate.
You were simply in the wrong place at the wrong time with
the wrong company.
And if that's the situation, you should not be held liable
for burglary.
Because ultimately, the prosecutor has to prove not
only that you were present, but that you were in on it.