It might seem logical to think that burglary is burglary–it involves things being stolen. But in fact, mitigating circumstances make some instances of burglary more severe than others, especially in terms of outcomes. Here’s what you need to know about first- and second-degree burglary in California.

What Is First-Degree Burglary, and What Are the Penalties?

In California, first-degree residential burglary is a felony–even if the defendant (the person charged with the crime) doesn’t end up stealing anything. This is because first-degree residential burglary is defined as illegally entering an “inhabited dwelling place,” whether or not a crime was committed once the dwelling place was entered. The intention is what counts.

As for what’s considered an “inhabited dwelling place,” that includes pretty much any type of structure that someone lives in, whether a house, apartment, motel or hotel room, houseboat, or another type of boat with living arrangements, RV or trailer.

If convicted (and again, remember that burglary only had to be intended, not committed), the defendant could spend up to six years in state prison, pay up to a $10,000 fine, which is considered one strike in California’s three strikes law. That law increases punishment for people with multiple serious crime convictions. When the conviction is a first strike, the person convicted must serve at least 85% of their sentence. If the person convicted of first-degree burglary had one prior strike, prison time is mandatory for the second conviction. But if the first-degree burglary conviction is the third strike, they face a minimum of 25 years to life in prison. This is why it’s strongly recommended that someone charged with first-degree burglary work with an experienced criminal defense attorney.

What Is Felony Probation?

Another possibility for someone facing a first-degree burglary conviction is felony probation (also referred to as formal probation). If the defendant has no prior history and the first-degree conviction wasn’t a violent crime, the court may be willing to sentence them to this type of probation.

Felony probation is a form of supervised probation that would allow the defendant to spend most or all of their sentenced time out of prison. It usually lasts three to five years and requires the defendant to attend monthly meetings with their parole officer, as well as other conditions set by the judge. The key to successfully completing felony probation is not violating any parole conditions. One condition is not to get into further legal trouble. If that happens during the probationary period, the judge is allowed to revoke probation and send them to prison.

What Is Second-Degree Burglary, and What Are the Penalties?

Second-degree burglary is a catch-all category that covers all instances of burglary not included in first-degree burglary. This includes burglaries that take place in a commercial establishment or any structure other than a residence.

Second-degree burglary can be charged as a misdemeanor or as a felony. When convicted of a misdemeanor, the consequences can include up to one year in county jail, while a felony conviction could lead to three years in state prison.

What Are the Defenses That Can Be Used When Charged with Burglary?

There are several defenses that can be pursued, depending on the specifics of the charges. These include (but are not limited to):

  • The person entering the residence had permission to do so or believed they had permission.
  • The person entering the building thought they were returning something, not taking something.
  • The building didn’t qualify as a residence because no one was officially living there at the time of the burglary. However, this can be difficult to use if the defendant claims they didn’t know the building was uninhabited because that implies they were willing to break into an inhabited building. It should be noted that this may only result in first-degree charges being reduced to second-degree charges, not in a complete dismissal of all charges.

What Does the Prosecution Need to Prove for a Burglary Conviction?

California prosecutors have several elements they need to prove before someone can be convicted of burglary.

  • The defendant entered the building. This may sound simple, but unless there’s indisputable evidence (security video footage, DNA, witnesses), it may be harder to prove than it sounds.
  • The defendant intended to burglarize the building. Because first-degree burglary doesn’t require the defendant actually to have stolen something, the prosecutor has to prove they intended to steal when they entered the building. For second-degree burglary, the prosecution would have to prove that the defendant intended to steal before they entered a commercial building, such as a retail store. However, there are times when a defendant entered the building with no such intention but came up with the idea after entering. Depending on the value of what they took, they may be looking at a theft crime charge, but it may not be as significant as burglary.
  • The defendant is guilty of the felony charge. As discussed above, intention and location are significant factors in determining if the charges should be felonies or misdemeanors. It’s up to the prosecution to prove that a felony is the correct charge.

What Should I Do if I’ve Been Charged with Burglary

Call the SoCal Law Network at 949-305-7995 to set up a free consultation. Regardless of whether the charges are first-degree or second-degree burglary, the sooner you have an experienced, knowledgeable criminal defense attorney working on your case, the better. The consequences of conviction can be significant, especially for first-degree burglary, so preparing an extensive defense is vital.