Residential Burglary (Penal Code section 459) – Orange County

There are two degrees of burglary in California – first degree for residential burglary and second degree for all others.

Residential burglary, sometimes commonly referred to as “breaking and entering,” is the unauthorized entry into a residence (which can include things like motel rooms, apartments and condominiums as well as single family houses) with the intent to commit a theft or a felony inside.

First, it requires that the prosecution prove that you had the intent to commit the theft or felony before you entered.  If they cannot prove that any theft intent was formed until after you made entry, then the charge can be reduced substantially, possibly to a trespassing or other misdemeanor.  Similarly, if the intent was to commit a misdemeanor (but not misdemeanor theft), then it is not burglary.

Residential burglary is also a strike under California’s “Three Strikes” law, meaning that if convicted, you would be required to serve 80% of your sentence (85% if a person was home at the time) and can be used to substantially increase the punishment on  any future felony convictions.  There is also a provision in the Penal Code that makes it presumptive that if convicted of first degree burglary, probation will not be granted and a state prison sentence should be imposed.  The sentencing range on a first degree burglary is 2, 4 or 6 years in state prison.

For more information or for aggressive representation on burglary or other theft offenses, contact my office to set up a consultation.