A burglary conviction is one which can stick with you throughout your life and has the potential to impact all of your future endeavors – from child custody to gainful employment. However, it is important to keep in mind that an arrest is not yet a conviction, and therefore you still have time to provide a defense to your charges. Therefore, it is extremely vital that you contact an experienced San Jose burglary attorney shortly after an arrest for burglary. Failure to timely handle a burglary charge could lead to a felony conviction.
California Burglary Charges - 1st & 2nd Degree Burglary
Generally, the crime of burglary in California requires that a person enter a building or vehicle with the intent to deprive the owner of property or commit a felony. The most important part of a prosecution's argument is to prove the defendant had the intent to commit a felony. The crime will not fall within the definition of burglary if you entered another person's home or vehicle and only after did you form the intent to commit a felony.
In California, burglary is divided into both first degree and second degree charges. The primary difference between the two degrees is that first degree burglary requires that a person enter the other person's residence with the intent to commit a felony. Second degree burglary occurs when the defendant enters any other type of structure with intent to commit a felony or a larceny therein. While first degree burglary always falls within the felony punishment range, second degree felony could be considered either a misdemeanor or a felony offense. An experienced criminal defense attorney will attempt to work with a prosecutor to lower charges to a misdemeanor, which is a much more manageable conviction to have on your record. However, a misdemeanor conviction will still have lasting repercussions on your future, and therefore an attorney will work to ensure no conviction occurs.
First degree burglary is a Strike within the meaning of the California Three Strikes. It is a serious felony if no one was home at the time of the burglary. It is a violent felony if someone was home at the time of the burglary. A defendant is eligible for good conduct and work-time credits under Penal Code section 4019, i.e., 1/2 time credits for a serious felony. Whereas, on a violent felony, the defendant must serve 85% of his or her entire sentence imposed.
Shoplifting - Penal Code section 459.5
What you should know about burglary after the November 2014 election in California, is that Assembly Bill 109 passed. AB 109 changed the law on burglary. Previously, entry into a store to commit theft was burglary. It was a wobbler, i.e., punishable as either a felony or a misdemeanor. Now, the law has changed to benefit the defendant. In this shoplifting scenario, a defendant cannot be charged with burglary anymore if the defendant takes or attempts to take less than $950 during the regular business hours of the store.
Penal Code section 459.5 defines the new shoplifting charge that replaces the old law on burglary. Specifically, shoplifting is a misdemeanor offense, i.e., here punishable by up to 6 months in jail and a $1,000 fine or both. Section 459.5(a) states, "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." Of note, however, is that registered sex offenders (under Penal Code section 290) will still continue to be prosecuted for burglary instead of shoplifting.
Additionally, anyone convicted of any of the offenses listed in Penal Code section 667(e)(2)(c)(iv) (see below) is ineligible for the benefit of this new law as well.
- (I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
- (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.
- (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
- (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
- (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
- (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
- (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.
California Burglary Defense
The prosecution in any burglary case must ensure that they prove beyond a reasonable doubt that the defendant violated all sections of the burglary crime. The lack of intent to commit burglary is often the best defense to any burglary charges. However, other defenses exist, including consent by the alleged victim, mistake of fact, and intoxication during the commission of the offense. An experienced San Jose burglary lawyer will be able to better advise you as to the defenses for your case, depending on the facts.
Ahmed and Sukaram Law | San Jose Burglary Attorney
If you have been arrested on suspicion of burglary, do not hesitate to contact the attorneys of Ahmed and Sukaram. Our San Jose criminal attorneys have years of experience in handling burglary cases and will work tirelessly to further develop a defense against your charges. Burglary charges have the potential to drastically impact your future career choices, child custody agreements, and may permanently remain on your record. Contact our San Jose office today for your initial free consultation.