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Burglary Defined Under California Penal Code section 459

Under California Penal Code Section 459, burglary is defined as the act of entering a building or other structure with the intent to commit a theft or some other felony. This includes almost any type of residence or structure—including a home, apartment, warehouse, store, building, barn locked vehicle, aircraft, or railroad car. Burglary can be prosecuted as a misdemeanor or felony in California. If you have been charged with burglary, we encourage you to put your case in the hands of experienced Los Angeles burglary defense attorneys from Stephen G. Rodriguez & Partners.

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Difference Between First And Second Degree Burglary

The main difference between first and second-degree burglary, is that a first-degree burglary involves burglary of a residence, vessel, floating home, trailer coach or the inhabited portion of any other building. All burglaries not of the first-degree are of the second degree.

Examples of first-degree burglary include breaking into your neighbor's home with the intent to steal jewelry; or entering a person's apartment through an unlocked window to steal electronics. First-degree burglary, commonly referred to as res burg is always prosecuted as a felony, and will result with a "strike" on your criminal record.

Examples of second-degree burglary include entering a department store in connection with a shoplifting offense; or accessing someone's ATM card with the intent to steal money.

Second-degree burglary is also referred to as commercial burglary and is a "wobbler," meaning that it could either be charged as a misdemeanor or felony. The seriousness of your charges will ultimately depend on a number of different factors, including the prosecutor's discretion, your criminal history and the nature of the crime.

Charged with auto burglary? Click here to learn more about these charges.


First-degree burglary is prosecuted as a felony in California, whereas second-degree burglary could either be prosecuted as a misdemeanor or felony. This means that the seriousness of the penalties you face will depend on the nature of your charges.

The penalties for felony first-degree residential burglary include:

  • Two, four or six years in state prison;
  • Up to $10,000 in various fines;
  • "Strike" on your criminal record.
  • A residential burglary committed when someone is present in the home or residence becomes a violent felony; and If convicted you will serve 85% if your sentence in state prison. If no one is present during the residential burglary then a defendant will serve 50% of his sentence in state prison (assuming no prior strikes or burglaries).

The penalties for felony second-degree commercial burglary include:

  • 16 months, two or three years in state prison;
  • Up to $10,000 in various fines;
  • No "strike" on your permanent record.

The penalties for misdemeanor second-degree commercial burglary include:

  • Maximum of one year in county jail;
  • Up to $1,000 in various fines;
  • No "strike" on your permanent record.

The specific penalties imposed on a burglary conviction will ultimately depend on the prior criminal history of the defendant; the crime that was intended during the burglary and whether the residence was occupied at the time of the residential burglary.

Legal Defenses

Burglary cases are unique in that the prosecutor does not have to prove that a theft crime or felony offense was actually committed inside the residence or commercial building. Rather, the prosecutor only needs to establish that you entered the building unlawfully, and with the specific intent to commit a crime at the time you entered the property The key to any burglary case is intent, and the burden of proof lies with the prosecutor. If the prosecutor cannot prove that you committed a crime after entering the property, it would be hard to prove that you intended to do so.

If the requisite intent cannot be established, your Los Angeles criminal defense lawyer would have a good chance at reducing or defeating the charges. Another common defense to burglary charges is that the defendant had a legitimate reason for being on the premises in the past. Thus, if your fingerprints were lifted from the crime scene, they could be explained by a prior visit. Another viable criminal defense would be to establish that you are the victim of mistaken identity—as is true in many burglary cases.

Contact a Firm with 50+ Years of Criminal Law Experience

Burglary charges are serious and come with serious penalties. If you are being investigated or charged with any type of burglary, it is critical that you take action immediately. You need experienced burglary defense attorneys in your corner to advise you and navigate the charges with you.

The criminal lawyers at Stephen G. Rodriguez & Partners understand there is a lot at stake when facing burglary charges. With more than 50 years of combined criminal law experience, we are no stranger to the courtroom. We advocate for our clients at every step of the criminal process, and you can trust that we will do the same for you. In fact, this zealous representation has helped us to secure many favorable results for our clients.

Have you been charged with burglary in Los Angeles, CA? Contact Stephen G. Rodriguez & Partners to schedule your free initial consultation.

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