Breaking Down First and Second Degree Burglary Charges in California

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According to the California Penal Code 459 the act of burglary involves breaking and entering a property in order to commit theft or felony. This could refer to an apartment or another place of residence, a business office, a cargo container and even storage units and tents.

However, California law recognizes two degrees of burglary. But what constitutes a first degree burglary or second degree burglary? This depends on several factors, including the type of property you entered and the type of theft committed: petty or grand.

In this article, we break down the difference between first and second degree burglary.

First Degree Burglary

The first degree burglary involves breaking into a place of residence or dwelling, like a house or an apartment. This type of burglary usually involves a harsher sentence than a second degree burglary.

A person facing first degree burglary charges can be sentenced by two, four or up to six years in prison. Since this type of burglary marks a strike on a criminal record, a convict has to serve 85% of their sentence.

However, if they were convicted with a prior strike, they will have to serve a double sentence and at least 80% of this sentence. Finally, if this is the third strike on your criminal record they are facing 25 to life.

Second Degree Burglary

Second Degree burglary involves breaking into a structure that does not serve as a dwelling, like an office with the intent to commit theft or felony.

Since this type of burglary is considered a wobbler, the prosecution can choose to treat it whether as a felony or a misdemeanor. The prosecutor’s choice depends on a number of factors.

If the burglary is filed as a felony, a convict could face a sentence of three years maximum. If it is filed as a misdemeanor, a convict is looking at a sentence of up to 364 days.

The factors that help determine how to file a second degree burglary involve whether a person charged has any prior convictions, what type of crime they committed upon breaking and entering and whether there’s enough evidence to convict them.

Naturally, a grand theft will lead to a larger sentence. You can read more about what constitutes a grand theft here:

What are the Possible Defenses?

The prosecution has to present the evidence proving that the accused intended to commit a crime upon breaking and entering for both types of burglary charges. Therefore, there are several possible defenses against the allegations.

  • The defense could try to prove that the defendant was not aware of the party’s intent to commit a crime upon burglary.
  • The defendant did not commit an act of burglary, leading to a false accusation
  • The defendant did not intend to commit a crime
  • The defendant was intoxicated and couldn’t form intent.
  • The defendant was invited by an owner or a resident of the structure
  • The police violated the defendant’s constitutional rights.

If you are accused of burglary in San Diego, contact Monder Law Group at 424 F Street, San Diego, CA, US; 619-405-0063.

November 6, 2017 · Editorial Team · Comments Closed
Posted in: News