the State Bar of California
the San Diego Union-Tribune
The Press-Enterprise


In California, burglary is prosecuted under Penal Code section 459 and is broadly defined as entering either a residence or a commercial business with the intent to commit a theft or felony once inside. If you have the requisite intent at the time you enter either a residence of a commercial business establishment, you can be prosecuted and convicted for the crime of burglary, even if theft or felonious act was never actually accomplished. For example, assume that someone tries to enter a home or apartment by removing a screen and prying open a window or door in order to steal money and jewelry once inside. Assume that a neighbor sees this and intervenes, thus preventing the suspect from getting inside and physically taking the money and jewelry. The prosecuting agency can still file residential burglary charges and the suspect can still be convicted of the same, even though nothing was actually taken or removed from the home.

Burglary charges can be quite serious in California. The punishment for a burglary conviction can vary significantly, depending upon the “degree” of the offense. Burglary in the “first degree” is commonly referred to as “residential burglary” and is always charged as a felony. This applies in cases where someone enters a residence with the intent to commit a theft or felony once inside. “Residence” is broadly defined to include any structure where people are living – including houses, apartments, boats, trailers, hotel rooms, and the like. Even entering a garage that is attached to a residence with the requisite criminal intent can also lead to filing of a residential burglary charges and a conviction for the same. Residential burglary is punishable by a custody term in the state prison of up to six years. The penalties can be even greater in cases where someone was injured as a result of or during the commission of the crime, when a weapon or firearm was used during the offense, and in some instances, where residential burglary is charged in conjunction with other related crimes. In these cases, serious sentencing enhancements may apply and can significantly increase the overall state prison exposure.

It is important to note that a felony conviction for residential burglary under Penal Code section 459 also qualifies as a strike offense pursuant to California’s Three Strikes Law. As such, a felony conviction for residential burglary could have the collateral consequence of doubling the sentence for any felony convictions that may occur in the future. This is true even if probation is granted, a petition is later filed to have the underlying residential burglary conviction expunged pursuant to Penal Code section 1203.4, et seq., and that request is granted by the court. Residential burglary is a strike offense, so even if it is later expunged, it will still count as a strike for purposes of enhanced punishment in the future.

All other burglary situations involve commercial business establishments are commonly called “second degree” burglaries. Second degree or commercial burglaries are “wobbler” offenses, meaning that they can be filed as misdemeanors or felonies, depending upon the specific circumstances involved in each case. The decision to file felony versus misdemeanor charges depends largely on three things: (1) the egregiousness of the alleged conduct involved; (2) the extent of the harm suffered by the alleged victim, if any; and (3) the alleged perpetrator’s prior criminal history, if any. These same three factors will also have a significant impact on what the precise criminal penalties will be in each case. As a felony, commercial burglary carries a maximum possible sentence of three years in the county jail pursuant to Penal Code section 1170, subdivision (h) and/or a fine of up to $10,000, plus court costs. As a misdemeanor, commercial burglary carries a maximum possible sentence of one year in the county jail and/or a fine of up to $1,000, plus court costs.

You absolutely cannot afford to underestimate the widespread implications that this type of conviction could have in your life and for your future. First and foremost, both first and second-degree burglary offenses are considered crimes of moral turpitude. This means that if convicted, you may also face adverse collateral consequences related to your immigration status, as well as any professional licenses you may be required to have in order to maintain your employment. Even if you are not required to maintain a professional license in order to earn your livelihood, it is common in today’s world for reputable employers to run background checks on individuals who work for them, and those they are considering hiring. As such, even a misdemeanor criminal conviction for a theft related offense could impact your ability to maintain your current employment and your ability to obtain more lucrative employment opportunities in the future.

At the Law Office of Julie Ann Baldwin, APC, we understand that mistakes happen, and we firmly believe everyone is entitled to vigorous, competent and compassionate legal representation. We also understand that the criminal process can be daunting and confusing. In many cases, there are often huge discrepancies between what people think the law is, what they think the law should be, and the reality of what the law truly is. That’s why we are committed to keeping you fully informed throughout the legal process as we work to strategically develop and prepare your defense, with a keen eye toward achieving the most favorable outcome possible for you.

Remember that the legal issues relevant to your case are best identified and addressed early on by a qualified Murrieta defense lawyer. Regardless of the circumstances surrounding your case, it is imperative that you act swiftly and smartly by hiring an experienced, local attorney who is familiar with the rules, common practices and procedures, and individual prosecutors and judges in the jurisdiction where you are facing criminal charges. As a former prosecutor at the Southwest Justice Center in Murrieta, California for the better part of fifteen years, Ms. Baldwin has worked hard to establish her reputation as a trusted, knowledgeable and effective advocate and looks forward to the privilege of putting her skills and experience to work of you.

If you have already been charged or anticipate being charged with burglary in the Murrieta area, contact your Murrieta criminal defense lawyer at the Law Office of Julie Ann Baldwin, APC for your free, confidential case consultation now. Your future and your freedom deserve to be taken seriously by an experienced attorney who is committed to quality representation and compassionate advocacy, every step of the way.

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