Friday, October 1, 2010

Burglary in California (PC §459)

Burglary is defined under California law (Penal Code §459) as "entering a structure with the intent to commit a felony (or a petty theft) once inside".

While this offense is commonly referred to as "breaking and entering," forced entry is not required. If one intends to commit a theft or felony after entering, the Burglary is [technically] complete upon passing through the threshold of the structure.

Depending on the criminal history of the defendant as well as the circumstances of the case, Burglary may be charged as a misdemeanor or a felony. Because it can be charged either way, we call it a "wobbler" and the difference is significant. As a misdemeanor, a conviction can lead to some time in county jail; as a felony, one can be sentenced to several years in State Prison.

From a defense standpoint, it is essential to remember that Burglary requires "specific intent," which means the prosecution must prove, beyond a reasonable doubt, what the defendant was "thinking" at the moment the crime was allegedly committed. As you might imagine, that can be very difficult - unless they were inside the defendant's head at that moment - though not impossible. Because it is hard to know what a defendant was "thinking" at any given moment, countless individuals are wrongly accused, arrested, and charged with Burglary.

Remember, accusations and convictions are completely different. That is why a skilled and aggressive legal counsel is a must for anyone facing Burglary allegations or charges.

Penal Code §459: How One Can Be Convicted
A Burglary (PC§459) conviction in California requires that the prosecution prove, beyond a reasonable doubt, only two things:

First: that the defendant entered a building or other specified structure or enclosure,


Second: that, at the time the defendant entered, he or she had the intent to steal or commit some other felony.

One would think that a conviction should be simple given that there are only two elements to prove. However, a skilled Criminal Defense Attorney knows that there is much more to it than that.

What is a Building?
A "building" is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property. The law actually identifies over twenty types of locations that may be the subject of a burglary.

For example:

• homes
• hotel rooms
• apartments
• campers
• motor homes
• shops
• stores
• offices
• warehouses
• restaurants
• cars
• boats
• airplanes
• railroad cars
• barns
• stables

What is Entry?
"Entering" a structure is not as obvious as just walking through a door or crawling through a window. For purposes of California burglary law, one "enters" a building or structure:

1. When any part of the defendant's body crosses the outer limits of that location, or

2. When any object under the defendant's control crosses those limits.

Look at it like this: when Goldilocks entered the Bear's home by walking through the door, she entered. If she had the intent to take food when she did, the burglary was complete the moment she crossed the threshold. Even if she changed her mind and walked out empty-handed. That is simple.

However, what if she simply reached in through the already-open kitchen window? Yes, that is enough for entry. Had she reached in intending to take the pie that was cooling on the counter, the burglary would be complete.

Let's say she used a fishing pole to lift the pie up and through the window and that no part of her body passed through and into the house...that is enough for entry. The fishing pole entered under her control. That's all it takes.

Proving Intent
This is where the defense gets interesting. The prosecution must prove, beyond a reasonable doubt, that the defendant intended to steal something or commit a felony at the time he or she entered the location. That is, they must prove “what the defendant was thinking” at the time of entry.

Sometimes Intent is Obvious: If it is the middle of the night and the defendant enters wearing a ski mask, carrying a crowbar and a loot bag, and doesn’t otherwise belong there, proving intent is not such a stretch.

Sometimes Intent is Not Obvious: On the other hand, what if the defendant exits a market without paying for the bottle of olive oil tucked away in his or her jacket? It could be nearly impossible to “prove” that the defendant intended to steal when he or she entered the store.

Theft or Felony and Only Theft or Felony
Even if the defendant never actually takes anything or commits the intended felony, the burglary is complete the moment of entry. But, what if the defendant enters a structure intending to commit a misdemeanor?

Let’s say the defendant entered the structure – without permission – for the sole purpose of slapping the occupant across the face (because he cheated on her). Hitting someone is a battery and that is a crime, but simple battery is not a felony so no burglary.

Other Burglary (PC§459) Offenses

Auto Burglary
An "auto burglary" requires an actual "break in" takes place when one enters a locked car with the intent to

• steal the car, or

• steal property within the car, or

• commit another felony inside the car.

Burglary via Forgery (PC §470)
Under California law, Forgery occurs when one knowingly creates, alters, or uses a written document, intending to commit a fraud.

If the defendant enters a banking institution or check-cashing store intending to cash someone else’s check with a signature that the defendant forged, he or she could be charged for both the forgery and the burglary – because the defendant intended to commit the forgery when he or she entered. By the same token, if the defendant enters a business intending to pay for a purchase with a stolen credit card, a burglary charge could be just the tip of the iceberg.

Theft is Theft
California’s Burglary statute specifically refers to both grand theft and petty theft.
Grand Theft (PC §487) refers to

• stolen goods or services valued above $400,

• stolen cars (grand theft auto), or firearms, regardless of their value, and

• property stolen directly from another’s person.

Petty Theft (PC §484) refers to
• stolen goods or services valued at or below $400.

Burglary via Embezzlement
Embezzlement in California happens when the defendant steals property that has been entrusted to him or her. Most commonly we see embezzlement where an employee steals from his or her employer. Where the prosecution can prove that the employee entered the building with the intent to embezzle (steal), burglary charges can also be charged.

Burglary and Robbery are Different, but Can be Related
Robbery (PC §211) is simply as the taking of another’s property from his or her person or immediate presence, accomplished by force or fear.

The individual who enters a structure with the intent to use force, intimidation, or fear to obtain property from a person on the premises, the burglary is complete. If that same individual carries out the intended crime, he or she will also face robbery charges and probably several others.

First Degree Burglary vs. Second Degree Burglary
California separates burglary into two categories -- first degree burglary and second degree burglary (PC §460)

First Degree Burglary, also known as residential burglary, occurs when the defendant commits a burglary on any inhabited dwelling and is the more serious of the two types. A dwelling is "inhabited" if it is used for dwelling purposes, regardless of whether it is currently occupied. First degree burglary is always a felony.

Second Degree Burglary, a.k.a. commercial burglary, is any burglary that isn't first degree. Shoplifting (PC §484) is the most common example. Second degree burglary is a "wobbler," which means it may be prosecuted as a felony or as a misdemeanor.

Strike Three, You’re Out
A first degree residential burglary conviction, it will count as a California serious felony under PC §1192.7(c). If there was a person in the residence or other structure at the time of entry, the burglary will count as a violent felony. In either of these situations, the conviction will count as a strike under California’s Three Strikes Law, which could ultimately result in lifetime imprisonment.

Defending PC §459 Burglary
Make no mistake, penalties for burglary in California a strict. However, a skilled attorney knows there are a variety of defenses that may be available.

Attack the Intent
Without intent there can be no burglary. If the defendant did not intend to commit a theft or other felony upon entry, he or she simply cannot be convicted of burglary. In defending a case, a skilled attorney will know that, if the target crime never occurred, then intent becomes more difficult to prove - beyond a reasonable doubt. Likewise, if it appears that the decision to commit [a theft] was made AFTER entering the structure, then "proof of burglary beyond a reasonable doubt" becomes very, very challenging for the prosecution.

Mistake of Fact, but Not Mistake of Law
Where theft is the target offense, for example, if one enters the structure and is reasonably mistaken as to the ownership of the thing he or she intended to take back, then there is no burglary. That is a mistake of fact; the defendant was mistaken as to ownership. On the other hand, "I thought it was only burglary if it was a house," is not going to win the day. That is mistake of law and is no defense.

Consent may or may not be a viable defense, depending on the situation. Examples of when consent may act as a defense include (but are not limited to):

• a situation where the defendant owns the property, or

• a situation where the defendant is invited in and the owner knows of his or her criminal intent (such as an undercover officer inviting you in to receive stolen property). The rationale here is that the danger that burglary law seeks to protect against is absent in such a situation.

However, if the property owner is not aware of the defendant's criminal intent, Consent will not be a viable defense. For example, the defendant enters a market or department store, intending to shoplift. While he or she has permission to enter for commercial purposes, the defendant does not have permission to enter for the purpose of stealing.

Good Old Factual Innocence
Of course this is the best and most effective defense to a burglary (or any other) charge. When it comes to burglary, one can be falsely arrested or falsely accused for a myriad of reasons, such as mistaken identity or true, but misleading, evidence.

Sometimes the evidence can appear very damaging. Nevertheless, a skilled California burglary attorney knows how to argue against the evidence and present a tough legal defenses to persuade the prosecution to resolve the case or maybe even dismiss it altogether.

If you or a loved one has been accused, arrested, or charged with a burglary in Southern California, consult a skilled Criminal Defense Attorney who will take the time to fight for you personally.

For more information about burglary, or to discuss your case confidentially, contact The Law Office of David J. Givot at (310) 699-0070 or go to: