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:
Breaking - 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.
God Bless you Stephen, wish you all the successes in life.
“Stephen is a great contact and extremely helpful and knowledgeable. I am glad that I was his client in the past. Top lawyer, top man. God Bless you Stephen, wish you all the successes in life.”
Don't hesitate to contact them!
“I was referred to this group of Attorneys. I was started with a low cost made arrangements. My case had to do with assault allegations. The case was dismissed they helped me not to loose my daughter to the system.”
Never Talk To Police
Know your rights when questioned by law enforcement.Defend Your Rights
Learn What To Do When Confronted and Interviewed By The Police
Honest & practical advice during a free initial consultation. Call now to get started!Read More
Don't Plead Guilty!
A plea bargain may not be in your favor. Let us help evaluate all of your options.Learn More