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California Penal Code section 459 defines burglary as the act of entering any enclosed structure with the intent to commit a theft or a felony therein. The California Penal Code further separates burglary into two categories: burglary of the first degree and burglary of the second degree. Sam J. Polverino has more than 40 years of experience defending people against these types of charges. He can help you as well. When your future or that of a loved one is on the line experience matters.
First-Degree Burglary
First-degree burglary is commonly referred to as residential burglary and is the more serious of the two types of burglary. First-degree burglaries are felonies and "strikes" under California's "Three Strikes Law." A person commits first-degree burglary if he or she burglarizes any inhabited dwelling - meaning any place where someone lives or sleeps, regardless of whether it is currently occupied when the act occurs. Burglary in the first degree is punishable by up to six years in prison. Factors that surround these types of cases can make consequences more severe. This can happen if an assault or a violent crime is committed during a burglary or if a victim is present. Penalties vary on a case-by-case basis.
Second-Degree Burglary
Second-degree burglary is commonly referred to as commercial burglary under the California Penal Code and is generally everything other than residential burglary. Breaking into a locked vehicle can also constitute a second-degree burglary. Second-degree burglaries can occur in schools and commercial outlets such as stores or markets. They are most often arise in connection with shoplifting or petty theft cases; in these cases the prosecution must show that the person formed the intent to steal before entering the store. Less severe than a first-degree burglary, a second-degree burglary offense may be prosecuted as a felony or a misdemeanor (commonly known as a "wobbler"). If charged as a felony, burglary in the second-degree is punishable by a maximum of three years in state prison. It can also be reduced to a misdemeanor by the court or district attorney.
Just because you have been arrested on a burglary charge does not mean that you will be convicted. To be convicted, prosecutors must prove beyond a reasonable doubt that you have committed an act of burglary with the specific intent required. Prosecutors may agree to settle burglary cases for less serious charges through a plea bargain for several reasons including the legal complexity of the case, the results of follow-up investigation, and evidence of a person's good character. If a plea bargain is not in the client's best interest, there may be other remedies that can be crafted through the dedicated work of an experienced attorney familiar with the law, the prosecutor's office and the court. At times like this experience matters.
Defense to Burglary include:
  • Lack of intent
  • Misidentification
  • Consent (to enter vehicle or residence)
  • The lack of specific intent to steal
These are just a few examples of defenses that may apply to a burglary charge. Each case is different. An experienced and effective criminal defense lawyer can put forward the best defense for your specific case. You can be falsely accused and wrongly arrested on charges of burglary in a number of scenarios. When searching for legal representation, you should consider a San Jose criminal defense attorney.
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