Understanding First & Second Degree Burglary in California

Burglary is defined as entering a building with the intent to commit theft or the intent to commit a felony. There are two types of burglary in California – first degree burglary (aka residential burglary) and second degree burglary (aka commercial burglary), defined by Penal Code sections 459 and 460.

First degree burglary (Penal Code section 450-460(a)) involves entering a home or residence with the intent to steal property or the intent to commit a felony. First degree burglary (or residential burglary) is always charged as a felony and is considered a “strike” offense under California’s Three Strikes Law. The maximum penalty for first-degree burglary is normally 6 years state prison, but depending on the circumstances of the case, the District Attorney’s office can add enhancements that will increase the maximum penalty of the crime.

Second degree burglary (Penal Code section 459-460(b)) involves entering any building other than a residence or home, with the intent to steal or with the intent to commit a felony. Usually second degree burglary is charged in theft from stores or commercial properties. Second degree burglary is a wobbler. If charged as a felony, it carries a maximum penalty of three years prison, but that prison time is served pursusant to Penal Code section 1170(h). That means that the prison time is served in county jail as opposed to state prison. Misdemeanor second degree burglary has a maximum penalty of one year county jail.

Sometimes, the District Attorney’s Office will charge a person accused of shoplifting with second degree burglary as well. This will happen in cases whether the DA’s office suspects that the person entered the store with the intent to shoplift. For example, if someone is caught shoplifting and they didn’t have any money on them, then the DA may suspect that the person already planned to shoplift before entering the store. That would be second degree burglary.

Some types of second degree burglary can turn into a robbery. An Estes robbery is where a person takes something from a store and then fights with the security guard while fleeing the store. The use of force with the security guard transforms the burglary into a robbery, which is a far more serious crime with far more serious penalties.

Although most burglaries occur when a person intends to steal something, burglary can be charged when a person intends to commit any type of felony. For example, if a suspect enters a home to rape someone, then the suspect can be charged with rape and first degree burglary. If a suspect enters a school in order to vandalize it, the suspect can be charged with felony vandalism and second degree burglary. A person can be charged with burglary even if there was nothing taken and no intent to steal.

Other Consequences

Not only can a burglary conviction lead to criminal penalties, but it can also have drastic employment, licensing and immigration consequences. Burglary crimes are considered crimes of moral turpitude, which are crimes that relate to a person’s honesty. Having a burglary conviction can prevent a person from finding a job or lead to a person being fired from their current job. Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks. A professional who has a burglary conviction on their record risks losing their professional license, or never acquiring it in the first place. Perhaps the most severe impact of a burglary conviction involves immigration consequences. Non-citizens who are permanent residents, with a green card, or temporary visitors, with a visa, can be denied admission or naturalization or even deported, with a burglary conviction on their record.

The Right Lawyer

Choosing the right criminal defense lawyer will be the most important decision someone can make when facing criminal burglary charges. Many people who face burglary charges are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of burglary, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need an attorney like Fred Thiagarajah.

As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients, for criminal cases and immigration consequences. Fred Thiagarajah has helped clients with burglary charges in the past. For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.