People often confuse the crime of burglary with other crimes, especially with the crime of robbery. Actually, burglary requires nothing more that the illegal entry into certain structures, vehicles, or other modes of transportation with the intent to carry out any felony or a misdemeanor petty theft (except shoplifting, which since 2014 falls under its own statute). It is the physical entry with the intent to commit a felonious crime (or petty theft) that constitutes the crime of burglary. It is not even necessary that the crime the burglar intends to commit be committed for the crime of burglary to occur. Let's say someone enters a house with the intent to murder someone but the murder is thwarted and no one is killed. While in that scenario the actual murder did not occur, the burglary did.

William Weinberg, an experienced Orange County burglary defense lawyer, can identify the elements of the alleged burglary charged and determine whether the conduct actually fulfilled the requirements of burglary under California statute. The crime of burglary requires that the prosecution prove the intent to commit the underlying crime. Sometimes the charge can be defeated on that alone. For example, if a person enters a residence for another reason but then sees an opportunity to commit a crime, the person may be guilty of the other crime, but he or she is not guilty of burglary because when the person entered the residence there was no intent to commit that crime.

A first-degree burglary occurs whenever someone enters a structure that is inhabited. This might be a house, an apartment, an RV, a houseboat, a tent or sometimes just a separate room within a structure. Other structures may also be considered "inhabited" under this statute; all that is required is that someone is currently living in the structure. The inhabitant does not need to be there for a burglary to be charged.

It is a second-degree burglary when someone enters a structure that is not currently being lived in, for example a storage shed or a business or enters a locked vehicle or other mode of transportation such as a railroad car or an airplane, with the intent to carry out a felonious crime or a petty theft.

Sometimes the facts of the crime are nuanced. For example, is the entry into a garage, which is attached to a house but with no entry between garage and house first or second degree burglary? You can be pretty sure the prosecution will charge first degree under those circumstances but a knowledgeable burglary defense attorney in Orange County may be able to argue, with prior case law as support, that the act is second-degree burglary.

Burglary is a serious charge. First-degree burglary is always charged as a felony and is a strike under California's "Three Strikes Law." First-degree burglary is punishable by imprisonment in state prison for two, four, or six years.

Second-degree burglary may be charged as a misdemeanor or a felony. Second-degree burglary carries a sentence of up to one year in county jail and/or probation if charged as a misdemeanor or imprisonment in a county jail for 16 months, or two or three years if charged as a felony.

Under certain circumstances, as for example when a victim suffers great bodily injury during a burglary, the sentence for burglary can be enhanced, meaning a longer potential prison sentence.

In addition to the burglary charge, a person charged with burglary will also be charged with the underlying crime or, if the underlying crime is not completed, with the attempt. Anyone charged with burglary should contact a criminal defense attorney who can identify any weaknesses in the prosecution’s case and devise a defense strategy.

Orange County burglary defense lawyer William Weinberg has been defending individuals charged with burglary for almost 30 years. He may be contacted at (949) 474-8008 or by email at bill@williamweinberg.com for a consultation free of charge.

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