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Criminal Defense Information for Burglary (Cal. Penal Code s. 459)

  1. What is Burglary?
  2. What are the necessary elements to be found guilty of Burglary?
  3. What is the sentence / punishment for Burglary?
  4. What are possible defenses to charges of Burglary?
  1. What is Burglary?

    Burglar with flashlight in house at night

    Burglar with flashlight and weapon in house at night

    A person who enters a building, tent, vessel, houseboat, railroad car, locked or sealed cargo container, trailer coach, any house car, inhabited camper, locked vehicle, aircraft, or mine with the intent to commit grand or petit larceny or any felony is guilty of burglary. “Inhabited” means used for dwelling purposes—it does not require an occupant at the time of the burglary. (Cal. Pen. Code s. 459 Opens in New Window)

    Degrees of Burglary (Cal. Pen. Code s. 460 Opens in New Window)

    A burglary of an inhabited dwelling house, a vessel which is inhabited and designed for habitation, a floating home, trailer coach, or the inhabited portion of any other building is burglary of the first degree. All other kinds of burglary are of the second degree.

  2. What are the necessary elements to be found guilty of Burglary?

    To prove the defendant committed Burglary, the state must show that the defendant:

    1. Entered a building, room, locked vehicle, etc.; and
    2. At the time of entering the building, intended to commit a theft or other felony.
  3. What is the sentence / punishment for Burglary?

    First degree burglary results in imprisonment in the state prison for two, four, or six years. Second degree burglary is a wobbler—it can be a misdemeanor or a felony. If the court deems it a misdemeanor, punishment is in the county jail for up to one year; if a felony, the sentence can be 16 months, 2 years, or 3 years in the state prison.

    If the burglary is of an inhabited dwelling house or trailer coach, an inhabited floating home, or the inhabited portion of any other building, probation will not be granted except in “unusual” cases where the interest of justice would best be served.

    Cal. Pen. Code s. 461 Opens in New Window

  4. What are possible defenses to charges of Burglary?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    For Burglary, convincing the jury that the prosecutor failed to prove beyond a reasonable doubt that the defendant intended to commit a felony at the time he entered the location would be enough to get a not guilty verdict.

    If the prosecutor can prove all the elements of Burglary, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Burglary, some of these justifications include:

    • Permission from the owner;
    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Statute of Limitations.
See also, Carjacking, Embezzlement, Grand Theft, Petty Theft, Robbery.