Burglary is the unlawful entry into a building with the intent to commit a crime. No physical breaking and entering is required for the crime to be committed; the offender may simply trespass through an open door. The California Penal Code lists the types of properties which an individual might enter while committing a burglary. These include houses, residential rooms, apartments and apartments.
While in a robbery, where force or fear is used to obtain another person’s property, there is usually no victim present during a burglary.
Breaking into other types of property such as tents, outhouses and others also qualify as burglary.
To prove a charge of burglary, the prosecutor must prove the following;
- That there was an unauthorized breaking and entry into a building or occupied structure. Breaking-in can happen in two ways: actual and constructive. Actual break-in involves physical force, whereas constructive breaking-in involves methods of gaining entry without the use of force such use of blackmail or fraud. The offender does not have to enter the occupied structure in order to commit burglary physically. Sticking a hand through a window counts as an entry sufficient to support a charge of burglary.
- That the defendant entered a building or an occupied structure. Houses and their outlying structures such as garages and sheds qualify. Breaking into stores and office buildings is also considered burglary. The structure must also be closed to the public at the time of the burglary. Entering a store and picking an item during normal retail hours is charged as shoplifting. Breaking into abandoned, uninhabited or unused buildings may result in other criminal charges but not burglary.
- That the defendant had a mental intent to commit a crime. Usually, the crime committed by burglars is stealing. If the defendant did not intend to participate in criminal activity after entering the premises, the prosecutor might have to pursue an alternate charge such as trespassing
A defendant facing burglary charges has several options available to counter a burglary accusation. The defendant may use the following defenses to beat a burglary charge.
- The defendant can create a plausible doubt in the minds of the jury as to whether the evidence presented by the prosecutor truly demonstrates that a crime was committed. The defendant can do this by presenting an alibi.
- The defendant can argue that the break-in does not amount to a crime. The defendant can prove to the court that he had consent to enter a property and the owner/occupier never explicitly revoked that consent.
- The accused person can convince the court that they had no intention of committing a crime once inside the structure.
- The defendant could argue that someone entrapped them by convincing them to commit the crime when they otherwise would not have.
First Degree Burglary (Residential Burglary) is a felony and is punishable by up to six years in county jail and/or a maximum 1,000 fine, probation, restitution to the victim(s) as outlined in California Penal Code Section 460(a), 459.
Second Degree Burglary (Commercial Burglary) can either be a misdemeanor punishable by up to one year in county jail, and/or maximum fine, probation or a felony which attracts a punishment of up to three years in county jail or state prison, a fine, or both, as outlined in California Penal Code Section 460(b).
Burglary with Explosives is a felony punishable by up to seven years in state prison, fine, probation or parole, restitution to the victim(s).