Burglary - First and Second Degree: California Penal Code section 459

Whether charged as a felony or a misdemeanor, burglary is a serious offense that carries substantial penalties including time in state prison or county jail and very expensive fines. If charged with First Degree Burglary, you also face a strike on your record under California’s Three Strikes Law. If you have been charged with burglary, the experienced attorneys at McDowell Defense can help. Call right away at (213) 401-2322 for a free consultation.

California Penal Code section 459 (PC459) defines burglary as:

the act of entering a building or premise with the intent of committing a felony or stealing property inside.

To be convicted of burglary, it is not necessary that the burglar break into the premise s/he enters. A person may be convicted of burglary if s/he walks right into an open building, such as a store, with the intention of stealing or committing a felony inside.

Within the definition of Burglary under PC459, “building” is used loosely and can mean many other things besides a traditional building. Phone booths, tents, campers, floating homes, aircrafts, mines, and storage units may be included as “buildings” for purposes of PC 459 Burglary. Similarly, a car is considered to be the appropriate premise for Auto Burglary, as long as the car is locked at the time of entering. Auto Burglary, however, is the only form of burglary that requires the premise to be locked to find the defendant guilty of burglary.

First Degree Burglary vs. Second Degree Burglary; Penalties

PC459 divides burglary into First Degree Burglary and Second Degree Burglary. The main difference between the two is where it takes place and what the possible penalties are.

First Degree Burglary

First Degree Burglary is often known as “Residential Burglary,” and it involves burglary inside someone’s home. First Degree Burglary is ALWAYS a felony offense, and it counts as a strike under California’s Three Strikes Law.

Penalties for First Degree Burglary include:

Maximum fine of $10,000
2-6 years in state prison.

Because First Degree Burglary is considered a strike, if you are convicted, you must serve 85% of your sentence before you are considered for parole. Probation typically not granted in First Degree Burglary cases.

Subsequent charges could result in 25 years to life in California State Prison because of the Three Strikes Law.

Second Degree Burglary

Second Degree Burglary is often known as “Commercial Burglary,” and it can be charged as either a felony or a misdemeanor offense, depending on the circumstances of the case as well as the defendant’s criminal history.

Possible Penalties for Second Degree Burglar:

Maximum fine of $1000
One year in county jail
Maximum fine of $10,000
Three years in California State Prison

Defenses to Burglary

Whether First or Second Degree, felony or misdemeanor, burglary is a complex charge that has available defenses for an experienced criminal defense attorney to use. Some of the available defenses include:

You did not have the intent to steal/commit a felony at time of entering property

Mistaken identity
Took property that belonged to you
Had permission to take the items

Contact McDowell Defense

We know that it can be troublesome when you need to act quickly to access money. But often, obtaining valuable information on your case will depend on when you hire your attorney. Again, the old cliché “the sooner the better,” fits, as you don’t want to lose valuable witnesses, video, or other evidence which can be lost or destroyed quickly and easily. Call McDowell Defense today to discuss the best financial arrangement possible for your particular situation at 213-401-2322.

McDowell Defense

1055 W 7th St 33rd Floor,

Los Angeles, CA 90017

Phone. 213-401-2322

Email. lonnie@mfalegal.com