Modesto Burglary Defense Attorney
Burglary is define in California Penal Code § 459. Burglary is the entering the property of another with the intent to steal or commit a felony. 1st Degree Burglary is a “strike” under California’s “Three Strikes Law”. 1st Degree Burglary is the entering of an inhabited dwelling (house, apartment, condo where people live) with the intent to steal or commit a felony. Although sometimes referred to as “breaking” and “entering”, “breaking” is no longer a necessary element of burglary. All other burglaries not involving inhabited dwellings are considered 2nd Degree Burglary. (see Penal Code § 460)
Elements Of Crime (Summary)
- Entering a building/room within a building/locked vehicle/inhabited dwelling
- With the specific intent to steal or commit a felony
1st Degree Burglar ONLY a Felony. As mentioned above it is the entering of the inhabited dwelling of another with the intent to steal or commit a felony. Even where the resident is temporarily not living in the home, so long as the occupant has the intent on returning it is considered an inhabited dwelling. The courts look toward the intent of the resident not whether it is possible for the person to return.
More importantly all 1st Degree Burglaries are strikes. However, when the burglary occurs when the occupants are away, then it is considered a “Serious” felony for sentencing purposes. Where occupants are home when the burglary occurs it is considered a “Violent” felony for sentencing purposes. The main difference between the two is that a commitment time. If a person is sentenced for a “Serious” felony then they serve 50% of the sentence in custody. A person convicted of a “Violent” felony must serve 85% of the sentence in custody. If convicted of this crime the judge will deny probation and send the person to prison unless there are unique facts and reasons the judge will not send the person to prison. The sentencing triad for this crime is 2, 4 or 6 years in custody.
2nd Degree Burglary is a “wobbler” and can be charged as a misdemeanor or a felony. If charged as a misdemeanor the maximum jail sentence that can be imposed is 1 year. If charged as a felony the sentencing triad is 16 months, 2 years or 3 years in custody and a fine up to $10,000 dollars. Any burglary not involving an inhabited dwelling is a 2nd Degree Burglary. Examples of 2nd Degree Burglary: Getting into store when it is closed to steal merchandise; Going into store when it is open to steal some merchandise (breaking into is not a requirement – therefore whether the store is open or closed doesn’t matter); Going into a brand new home where there is not residence and taking the fixtures [toilet, sinks etc]. The only time a breaking is required is when the burglary is of an automobile. (see below)
Auto Burglary is a “wobbler” and can be charged as a misdemeanor or a felony. If charged as a misdemeanor the maximum jail sentence that can be imposed is 1 year. If charged as a felony the sentencing triad is 16 months, 2 years or 3 years in custody and a fine up to $10,000 dollars.
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