Breaking and Entering
"Breaking and entering" refers to the common law (non-statutory)
crime of burglary, which consisted of the breaking (forced) and entering
of the dwelling of another at night with the intent to commit a felony inside.
Modern day statutes have changed a number of the aspects of the old common
law of burglary. For example, in California, Burglary (Penal Code section
459) is defined as:
any person who enters a building or structure with the intent to commit
a theft or a felony.
The elements of modern day burglary include:
- The old common law burglary required an actual breaking into the building
or structure. There is no requirement today that there be an actual breaking
into the structure or building. Just the mere presence of an intruder
on the premises is sufficient as long as the intruder's presence was
unlawful. The opening of a door or window of a dwelling is considered
a "breaking" even if the door or window was unlocked or slightly
open. The California law also states that constructive breaking such as
by fraud, threats, or misrepresentations are also considered a breaking.
Entry – There is no requirement that there must be a forced entry into the building
or structure as long as, at the time of entry, the intruder intends to
commit a theft or a felony. Any portion of the body inside the structure,
even momentarily, is enough to constitute entry. Even the use of a tool
to gain entry is sufficient, if it is to commit the theft or felony, as
well as gain entry.
Intent – The suspect entering the structure or building must have the intent to
commit a theft or felony at the exact moment of entering. There does not
have to be a completed theft or felony, only the intent to commit one.
Nighttime- The old common law required the breaking and entering to occur during the
nighttime. That is no longer required.
Dwelling – The old common law required that the burglary be the dwelling or house
of another. Burglary today is not limited to the dwelling of another.
In fact, burglary today includes structures such as stores, warehouses,
tents, house boats, hotel rooms, railroad cars, trailer coaches, locked
vehicles', and aircrafts.
Degrees of Burglary – In California, burglary is divided into first degree and second degree
burglary. Every burglary of an inhabited dwelling house, vessel, floating
home, or trailer coach which is designed for habitation, or any building
that is designed for habitation is first degree burglary. Most other kinds
of burglary are second degree.
The penalties for a burglary conviction are severe. First degree burglary
is a felony and a "Strike" in California punishable by two to
six years in state prison. Second degree burglary can be charged as a
felony, punishable by up to three years in state prison, or as a misdemeanor,
punishable by up to one year in county jail.
If you or someone you know is facing burglary (breaking and entering) charges,
immediately consult with an experienced criminal defense attorney to learn
about the criminal justice system, your rights, defenses, and any and
all legal options.
See also, Burglary.
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