Burglary crimes cover a whole host of different types of offenses, ranging from you (allegedly) sticking your hand through your neighbor’s open kitchen window to grab her purse off a nearby counter, all the way up to you bursting into someone’s home in the middle of the night while he/she is sleeping for the purpose of pistol-whipping him/her (for example).
These crimes are typically prosecuted under the following Penal Code sections:
First-Degree Residential Burglary (California Penal Code section 460(a); California Penal Code section 459)
Second-Degree Commercial Burglary (California Penal Code section 460)
The common thread in these different types of burglary crimes is the critical element that prior to entering the residence, structure, or vehicle (see below), you specifically intended to either steal something therefrom or to commit any felony therein.
See People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042.
Also, as indicated above, in order to be convicted of burglary, you only need to briefly stick a part of your body (or an object attached to your body or under your control) past the structure’s outer perimeter or vehicle to steal something or to commit a felony. For example, a window screen is considered to be an outer perimeter for this purpose.
See People v. Valencia (2002) 28 Cal.4th 1, 12–13.
Similarly, if the residence you intended to burglarize is on a second (or higher) floor, then that apartment’s balcony’s railing is also considered to be its outer perimeter.
Further, a structure can be anything that has four walls and a roof, including a storage unit, a chicken coop, a mobile home/trailer, house boat, etc. It also includes a boat or a vehicle.
See In re Amber S. (1995) 33 Cal.App.4th 185, 187.
Theft Crimes – Degrees of Burglary
Also as indicated above, the crime of burglary is divided into two degrees, which is typically left to the jury to decide (though, of course, it’s the prosecutor who determines what degree to charge you with).
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1700 (“Burglary -- Pen. Code § 459).
Anything else is considered to be Second-Degree Burglary (California Penal Code section 460(b)).
See CALCRIM number 1701 (“Burglary: Degrees -- Pen. Code § 460”).
Theft Crimes – Burglary -- “Wobblers”
Second-Degree Burglary – i.e., Commercial Burglary – can be charged as either a misdemeanor or a felony, depending on the particulars of your case. Therefore, this type of crime is referred to as a “Wobbler” (California Penal Code section 17(b)).
Theft Crimes – Burglary -- “Strikes”
Certain burglary crimes can be charged as Strike Offenses (California Penal Code section 667(a)&(b)), which can result in many years being added to your underlying prison term (see below).
Specifically, First-Degree Residential Burglary (California Penal Code section 460(a)) will typically be charged as a Strike if someone was home at the time.
So even if no actually violence or harm was inflicted on anyone therein, the fact that the potential for violence is so high in this circumstance results in First-Degree Burglary being classified as a “Violent Felony” under California Penal Code section 667.5(c)(21).
And in the event you do severely injure someone or if you used a gun during the residential burglary, you will be charged with an additional strike under Penal Code section 667.5(c)(8).
Special Bulletin re Non-Violent Theft Offenders Currently in Prison
Conversely, if you received a prison sentence for a non-violent burglary -- i.e., Second-Degree Commercial Burglary (California Penal Code section 460(b)) – you could be eligible for a premature release therefrom, thanks to a California Supreme Court ruling made in late 2020.
In that decision, the court ratified a 2016 ballot measure that was approved by California voters to qualify all non-violent imprisoned felons for potential early release. This ballot was introduced two years earlier in 2014 for the purpose of alleviating the state’s overcrowded prisons.
Your attorney should be able to file a petition with your sentencing judge which, if granted, would put you before the parole board, who, of course, retains the final authority as to whether to grant you early release.
California Statutes – Theft Crimes -- Burglary
If you enter any inhabited dwelling or locked vehicle with the intent to commit grand larceny/theft, petty larceny/theft, or any felony, will be charged with burglary under this provision.
If the conviction is for Residential Burglary, then you’ll be charged with a felony.
If the conviction is for Commercial Burglary, then you’ll be charged with a felony or a misdemeanor.
This statute explicitly separates burglary into two degrees: first degree for residential, and second degree for commercial.
California Penal Code section 460(b) (Second-Degree Commercial Burglary)
California Penal Code section 464 (Burglary of a Safe or Vault (“Safecracking”))
If you enter any structure, regardless of whether or not anyone’s inside it, with the intent to commit any crime, regardless of the time of day/night, and you open or try to open a vault/safe/other locked container by using a “burn bar”/acetylene torch/thermal lance or similar implement that can cut through steel/concrete/or similar material, or by blowing up the vault/safe/other locked container by using an explosive device/material, you will be charged with a felony hereunder.
Theft Crimes Convictions – Burglary
California Penal Code section 459 (Burglary in general)
If you’re convicted of felony Residential Burglary, you’ll get a prison term of 24, 48, or 72 months.
If you’re convicted of felony Commercial Burglary, you’ll get a prison term of 16, 24, or 36 months.
If you’re convicted of misdemeanor Commercial Burglary, you’ll get up to 12 months in the county jail (assuming the judge even requires you to go to jail).
California Penal Code section 464 (Burglary of a Safe or Vault)
If you’re convicted of this particular felony, you’ll be sentenced to a three-year, five-year, or seven-year penitentiary term, pursuant to California Penal Code section 1170(h)(1).
Defenses to Theft Crimes -- Burglary Charges
These are all effective defenses to the burglary charges discussed above:
- You didn’t enter into a building, structure, or room therein, or a locked vehicle;
- You did enter one of the above but when you did, you didn’t have the intent to steal something therefrom or otherwise commit any felony therein;
- You did enter one of the above with the intent to steal, but the value of the item you stole was $950.00 or less (mitigation to lesser charge, such as Petty Theft under California Penal Code section 459.5;
- The structure you entered and stole from was a commercial structure and you entered it during its regular business hours (mitigation);
- The owner of the property you took had lawfully consented to you doing so;
- You didn’t use force to enter the subject automobile (defense to auto burglary);
- The residence you stole from was your own (i.e., you had a current ownership or otherwise lawful possessory interest therein);
- You believed the property you were taking belonged to you (mitigation if you illegally entered the structure or vehicle) – this is known as a “claim of right” defense.
Keep in mind, however, that even if you entered the structure with the owner’s lawfully-obtained permission (i.e., you didn’t do so with fraud or deceit), if you thereafter formed the intent to steal something therein, or to commit any felony therein, you would still be criminally culpable for burglary.
See People v. Frye (1998) 18 Cal.4th 894, 954.
See also CALCRIM number 1700 (“Burglary -- Pen. Code § 459”);
CALCRIM number 1863 (“Defense to Theft or Robbery: Claim of Right -- Pen. Code § 511).
If you are charged for aiding and abetting the burglar, then the following defenses apply:
- You didn’t know of the burglar’s illegal intention;
- You never intended to provide aid or assistance to him/her for the purpose of burglary;
- You did have this intention, but you only formed it after he/she left the burgled structure.
CALCRIM number 1702 (“Burglary: Intent of Aider and Abettor”).
See also CALCRIM number 401 (“Aiding and Abetting: Intended Crimes”).
Theft Crimes -- Examples of First-Degree Burglary (Residential Burglary) Cases
Four Young Adults Receive Lengthy Prison Sentences after Being Arrested for Burglarizing Home
On or about June 7, 2015, LASD detectives – acting on a tip – followed Donte Caldwell (age 22) as he drove in a rental vehicle into the upscale Pacific Palisades neighborhood near Malibu as Caldwell cased potential homes to burgle. Inside the car with him were Mr. Elanee Jarrett (20), Mr. Everald Fisher (21), and Ms. Chivetta Overstreet (19).
The detectives watched Caldwell stop in front of a particular multi-million-dollar home, after which Jarrett banged on the front door. When nobody answered, he jumped over the home’s gate then broke in through a side door. At that point, Fisher followed him into the home, and they both emerged a little while later with the owner’s personal property in their hands.
Meanwhile, both Caldwell and Overstreet stayed in the car with the latter monitoring a police scanner to warn Jarrett and Fisher if any calls or alarms tipped off local police.
Shortly thereafter, the foursome were arrested. As a result, just over 15 months later (late Sept. 2016), all four defendants took nolo contendere pleas to the following felonies:
First-Degree Residential Burglary (California Penal Code section 460(a))
Grand Theft (California Penal Code section 487)
Conspiracy to Commit Grand Theft (California Penal Code section 182 -- California’s general conspiracy statute)
Accordingly, the judge sentenced them to the following prison terms:
- Eighteen years for Caldwell (since this was his second Strike -- California Penal Code section 667(a)&(b) -- having previously been convicted of Residential Burglary, as well as Commercial Burglary);
- A decade for Jarrett (same);
- Nine years for Fisher (second Strike because of a prior Robbery (California Penal Code section 211) conviction; and
- Five years for Overstreet (she had previous felony convictions for Carrying a Concealed Firearm On Your Person or in a Vehicle under California Penal Code section 25400 and being a Felon in Possession of a Firearm under California Penal Code section 29800.
Three Young Men are Sentenced to Years in Prison for Alhambra Burglary
In mid-May 2016, three men burglarized an Alhambra residence -- Deonte Pinker (age eighteen), Eugene Davenport (twenty), and Keith Wickware (twenty-two). It remains unclear how Alhambra PD was notified, but when the three men heard their approaching sirens, they fled on foot.
APD immediately set up a perimeter around the neighborhood, thereby quickly capturing Wickware and Pinker. As for Davenport, he was tracked down by a police dog, which he punched in the face when it found him. Even worse, when APD officers tried to arrest him, he fought back.
Exactly there months later (mid-Aug.), Davenport took a nolo contendere plea to First-Degree Residential Burglary (California Penal Code section 460(a)), as well as several counts of Battery on a Peace Officer (California Penal Code section 243(b)&(c)) (including for attacking the dog). As a result, he immediately received 48 months in a penitentiary.
One month later (mid-Sept.), Pinker did the same in regard to the same burglary charge, and received the same prison sentence.
At the same hearing, Wickware did the same, but because of a previous felony conviction for Second-Degree Robbery (California Penal Code section 211), he received almost a decade behind bars.
Theft Crimes -- Examples of Second-Degree Burglary (Commercial Burglary)
San Gabriel Resident Gets Almost a Dozen Years Behind Bars for Commercial Burglary, Etc.
Over a one-year period – Dec. 2012 to Dec. 2013 -- San Gabriel resident Joe Canlas (then age 36) burglarized four different homes in the local area (specifically, Alhambra and Pasadena). Among the items he stole therefrom were check books, which he used to cash numerous checks in business establishments throughout the county.
He was eventually arrested following a joint investigation by those cities’ police departments, and in late June 2014, Canlas accepted nolo contendere pleas to all four burglaries and a total of 12 felonies. He was therefore immediately sentenced to almost 12 years in a penitentiary. Specifically, he was sentenced for the following:
Second-Degree Commercial Burglary (California Penal Code section 460(b))
Taking an Automobile Without Consent (California Vehicle Code section 10851)
Possession for Sale of Methamphetamine (California Health and Safety Code section 11378).
Adult Female from Montebello Pleads to Felonies Stemming from Stealing Delivery Packages
On or about May 9, 2016, a homeowner in Alhambra was returning to his residence when he spotted Montebello resident Ms. Rianna Medina taking packages away that had been left at his front door. As Medina was leaving the scene on foot, the homeowner managed to film her doing so with his iPhone. When she saw him doing so, she chucked the items and fled.
Several days later, Medina rented a hotel room in Rosemead with the ID of someone whose wallet, driver’s license, and credit cards she had stolen.
The next day, Alhambra PD apprehended her, and two months later, she pled nolo contendere to the following felonies:
Second-Degree Commercial Burglary (California Penal Code section 460(b); and
Grand Theft (California Penal Code section 487).
As a result, she quickly received six months’ jail incarceration, to be followed by the same period of time in a halfway house with drug rehab, plus 60 months of formal probation.
A Selection of Theft/Burglary Cases Defended by the Los Angeles Defense Attorney Law Firm (LADALF)
Burglary (Felony Strike, 6 Years in Prison) - Reduced to Receiving Stolen Property, No Jail
People v. J.B. (Los Angeles Superior Court - LAX Courthouse, March 2015):
“Jenny” was arrested on suspicion of burglarizing a multi-million-dollar house, as well as receiving “hot” merchandise from an alleged burglary of another mini-mansion in the same neighborhood. As a result, she was charged with the following felonies, which received local media attention:
First-Degree Residential Burglary (California Penal Code section 460(a)), which was charged as a Strike Offense (California Penal Code section 667(a)&(b)) – specifically, as a “Violent Felony” under California Penal Code section 667.5;
Receiving Stolen Property (California Penal Code section 496(a)).
As a result, and even though she had no previous criminal record, she was now facing as much as half-a-dozen years in a state penitentiary. Fortunately, following an intensive investigation, LADALF’s founding lawyer Ninaz Saffari was able to convince the prosecuting Deputy DA that there was insufficient evidence to convict on the burglary charge.
The prosecutor dismissed that charge, and offered Jenny an exceptional deal: a plea to the Receiving Stolen Property felony, with no jail time, informal probation only, and, upon, successful completion, eligibility to have the felony expunged from her record.
Client Pled to 2nd Strike for Residential Burglary – LADALF is Petitioning for Re-Sentencing
People v. John Doe (LA County Superior Court – June 2021):
“John” had previously been convicted of First-Degree Residential Burglary (California Penal Code section 460(a)).
He was charged with the same crime in a new case. John didn’t want to take his chances at trial so accepted a plea to Residential Burglary under (California Penal Code section 459), as well as to a second Strike Offense (California Penal Code section 667(a)&(b)); specifically, he admitted to having committed a “Violent Felony” under California Penal Code section 667.5.
As a result, he was sentenced to the mid-term of four years in prison, which was doubled to eight years since this was his second Strike. And because this was a second Strike, he would have to serve 85% of the sentence, even with good behavior.
This was a terrible outcome for John, but then an almost-miracle happened: George Gascón was elected LA County’s new DA. Thanks to his Special Directive 20-08, John is now eligible for resentencing which would now be for the low term of two years without the Strike enhancement, pursuant to California Penal Code section 461(a).
LADALF is now in the process of attempting to secure the assigned prosecutor’s support to petition the sentencing judge under California Penal Code section 1170(d)(1).
We are optimistic that the judge will grant the petition, which means that with the time John spent in jail awaiting trial and his good-time credits earned thus far in prison, he would be eligible for immediate release.
Pre-File: City Attorney’s Office Charged “Mitchell” with 5 Misdemeanor Theft Offenses – All Counts Dismissed
People v. M.C. (LAX Courthouse – Dec. 2020):
Our client “Mitchell” broke up with his romantic partner, who, in retaliation, called LAPD and fabricated various theft crimes against him. Mitchell was a sharp guy so he immediately hired LADALF’s top lawyer Ninaz Saffari on a Pre-File basis.
Ninaz immediately reached out to the assigned detective and informed him that she had just been retained, and requested the opportunity to provide him with evidence that proved Mitchell was not guilty of those offenses. She also requested that the detective hold off on referring the file to the City Attorney for prosecution. The detective indicated that he was willing to wait until then.
So Ninaz and her P.I. got to work and quickly put together a package of evidence that proved the ex was lying about her allegations. However, after reviewing it, the detective demanded that Ninaz produce Mitchell for an interview. After she refused, the detective went ahead and transferred to the file to the City Attorney, who thereafter charged Mitchell with 5 misdemeanors.
But after Ninaz met with the Deputy C.A. in charge of the case and showed him the package, all charges were dismissed.
The Los Angeles Defense Attorney Law Firm (LADALF)
Since she was first admitted to the California Bar in March 2005, LADALF’s leader Ninaz Saffari has fought against virtually every type of theft offense, including Burglary charges with Strike enhancements where the client was facing more than a decade in prison. Her outstanding track record speaks for itself.