Commercial Burglary (459) and shoplifting – Who can be charged?

I was asked a question the other day about what could happen to their son if he got wrapped up in his friends’ “beer run” shoplifting case and they now are facing burglary charges.  What happens to a guy who is waiting in the car when his buddies come running out, shouting “go, go, go!”

First – the bottom line:  He needs a lawyer.  If he (and/or you) can afford to hire private counsel, I’d suggest doing so ASAP and before his court date.  If he cannot afford an attorney, one will be appointed to represent him.  He needs to show up and request a public defender at his first court appearance.

Now the charges:

Commercial burglary is entering a structure with the intent to steal or commit a felony inside.  They apparently think your son’s buddies intended to steal when they ran in.  From there, they think he’s involved as the getaway driver.  A person who “aids and abets” in a crime – somebody who, with knowledge of a crime that’s going to be committed, does something to facilitate the commission of that crime.  If your son had no knowledge of what was going to go on, he’s not aiding and abetting, so not guilty.  Of course, we don’t know what his buddies said about any “plan” that could implicate your son.

If he didn’t know what was to happen, but instead knew afterward and then drove them away, he could be an accessory (sometimes called accessory after the fact, but that is redundant.  You can only be an accessory after a felony has been committed.)  They have the same issues though – proving your son’s knowledge and involvement.  I’d look to what his codefendants said, in addition to any statement your son made to law enforcement.

If the other guys only formed the intent to steal after they entered, then the worst it can be is petty theft, a misdemeanor.  The same issues about aiding and abetting apply to your son, but if he knew they were going to steal, it turns it back into burglary, since there would have been the intent to steal formed before entry.

If it was only a petty theft, your son cannot be an accessory, since you can only be charged with being an accessory to a felony.

Given the issues involved in the overlap of the charges and intents required for each, your son needs a criminal defense attorney well versed in these issues.  In addition to what I’ve outlined above, there are issues regarding the admissibility of statements of co-defendants against each other (what are known as Aranda-Bruton issues) that must be explored to assess the prosecution’s case.

Find an attorney you feel comfortable with.  If you are going with the public defender, his plea should be requesting the public defender and entering a NOT guilty plea.  A public defender cannot get involved until they are appointed by the court, so you cannot be quite as proactive about trying to protect yourself if you wait to have a public defender appointed.

Joe Dane

(714) 532-3600

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