Burglary, commonly referred to as “breaking and entering” is defined by California Penal Code section 459, as the entering of a structure or locked vehicle with the intent to commit theft or a felony therein. Second degree burglary is a “wobbler”, meaning that it can be charged as either a felony or a misdemeanor. Where it is charged as a misdemeanor, second degree burglary is punishable by up to a 1 year in county jail and a fine of up to $1000. Where second degree burglary is charged as a felony it may be punished by up to 3 years. Fortunately though, since the realignment, second degree burglary may now be sentenced pursuant to Penal Code section 1170(h), meaning that the convicted may serve his term in the county jail with the potential of more liberal custody credit and an earlier release date. However, where the burglary is of an inhabited dwelling, it will be charged as burglary in the first degree, which is a felony under all circumstances. Burglary in the first degree is punishable by up to 6 years in state prison. First degree burglary is considered a serious felony, and is therefore subject to three strikes sentencing. Where the burglary conviction is a third or even a second strike, the sentence is dramatically increased and the ability of the defendant to earn custody credits and be paroled is severely restricted or eliminated. Where a first or second striker defendant is charged in the same proceeding for multiple felonies (even where those felonies are not strikes themselves) committed on separate occasions and arising from separate facts, then the sentence(s) for those felonies must be served consecutively.

Like other theft crimes, burglary is a specific intent crime meaning the prosecution is required to prove the contents of the defendant’s mind in order to sustain a conviction. Proving that a defendant “intended” to commit a theft or felony at the moment he entered the structure must necessarily be proved by circumstantial evidence. When a jury considers circumstantial evidence tending towards guilt, reasonable doubt and the California jury instruction on point requires a jury to acquit a defendant where there is also circumstantial evidence tending towards innocence. An experienced criminal defense attorney must be an expert in arguing this point.

In a first degree burglary strike case, a skilled defense attorney may be able to move the court to dismiss a strike pursuant to Penal Code section 1385 through a Romero motion. Because of the draconian severity of strike cases, it is important to consult a criminal defense attorney if you were arrested and are being charged with robbery.

The information contained on this website represents opinion only and is not intended to, nor should be relied on as legal advice of any kind. Should you wish to consult with an attorney, contact an attorney at the Law Office of Jesse Terrell at (323) 638-4712.
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