A “burglary” occurs when a person enters a structure with the intent to commit a theft or felony therein. The criminal intent of the defendant at the time of entry differentiates a burglary from a “breaking and entry.” For example, a burglary occurs when a person enters a home with the intent to steal something from within. However, if a person enters a home without intending to commit a crime, but after entering decides to steal something, then no burglary has occurred. A knowledgeable defense lawyer understands the difference in circumstances and can exploit these nuisances to a defendant’s benefit.
California divides burglary into first and second degrees. First degree burglary (also known as “residential burglary”) concerns entry into an inhabited dwelling, with second degree burglary (commonly called “commercial burglary”) covering all other structures. An“inhabited dwelling” is a structure in which a portion of it is currently being used as sleeping quarters, regardless if it’s occupied at the time of intrusion. Homes, apartments, hotel rooms, and even cars, can qualify as an inhabited dwellings. Second degree burglary normally covers stores and restaurants.
First degree burglary of an unoccupied dwelling is considered a “serious” crime in California, placing a “strike” on the defendant’s record. Burglarizing an occupied dwelling is considered both a “serious” and “violent” crime in California, not only counting as a strike, butalso limiting the custody credit a prisoner may receive to 15% while serving a sentence for a “hot prowl” burglary.
Second degree burglary is a “wobbler” in California, meaning the District Attorney has the discretion to charge a commercial burglary as either a felony or misdemeanor. The punishment for such a conviction can range for informal probation to being sentenced to prison.
Considering the stakes involved for a burglary defendant, the wisest course of action is to contact and retain the best criminal defense attorney available as early as possible to ensure the best possible result.