When you’re handcuffed and placed in the back of a squad car after being informed that you’re being arrested for burglary, it can be a terrifying experience. It’s hardly surprising that many people who find themselves in this situation panic and try to “talk their way out of the situation.” This is never a good idea!

Law enforcement officers devote their lives to obtaining incriminating information to build a strong criminal case against suspects. The average citizen does not have the experience to obtain the upper hand in a police interrogation. Whether you’re merely under investigation or have been formally arrested and charged with burglary under Penal Code Section 459, it’s essential to seek immediate legal advice from an experienced criminal defense attorney.

I’ve successfully represented thousands of clients in these types of situations. As a former California prosecutor, I have an insider’s understanding of the prosecution’s case and therefore an intimate understanding of the range of plea negotiation options and most effective defenses. If you have any questions or want to get an opinion on the legal options available to you, contact me for a free consultation.

What the Law Says

Burglary is defined under Penal Code Section 459 as entering a structure or other specified enclosure with the intent of committing a felony or theft once inside. The fundamental difference between burglary and theft is that you must have the intent to commit another offense (i.e., felony/ theft) when entering the structure.

For example, a shoplifter who enters a store and steals typically would not be found to have committed a burglary unless the suspect brought tools to remove the tags, showing that the accused had the intent to commit theft when he or she entered the store. While on TV crime dramas, burglary involves breaking into a structure, there is no requirement that someone accused of burglary forcibly enter the residence, commercial property or other structure.

The language of the burglary statute is broad and encompasses many situations that may seem counterintuitive. For example, the “structure” mentioned above can be many things other than buildings, such as cars, automobiles, train cars, airplanes, motorhomes and stables.

The term “entry” is also construed broadly. If any part of your body or any item that you control even briefly passes the outermost threshold of the structure, such as through a window or door, this is sufficient to constitute an entry for purposes of committing a burglary.

First-Degree vs. Second-Degree Burglary

Burglary is a serious criminal offense that is what’s known as a “wobbler”—i.e., it can be charged as either a felony or misdemeanor. The consequences of a felony conviction are very harsh, including a maximum term of 6 years in state prison or county jail. How you’re charged will likely depend on your criminal history and the specific circumstances of your case.

Burglary offenses are divided into first-degree burglary and second-degree burglary. Second-degree burglary is a wobbler, while first-degree burglary is always a felony.

First-degree burglary, also known as “residential burglary,” involves the burglary of a structure that constitutes an “inhabited dwelling.” This does not mean that someone need be living in the structure at the time the alleged offense is committed. It is enough that the structure is the type of dwelling that people might sleep or live in. First-degree burglary also requires that the intended offense once inside the structure is at least a wobbler felony offense or theft so that it may be charged as a felony instead of being a straight misdemeanor.

Defense Strategies

When a client engages me, I thoroughly investigate and analyze all of the evidence against you to develop the strongest possible burglary defense. For example, the charges could be based on misidentification because you were within a dwelling or business around the time of the alleged theft. I may also file motions to have critical evidence excluded based on constitutional and evidentiary requirements. I challenge every weak link in the prosecution’s case to undermine their position and, if possible, have the charges dismissed.

Other specific defenses I may employ in include:

  • Lack of Intent: The prosecutor must prove that you had the specific intent to commit a felony or theft when entering the residence, business or other structure. If you’re arrested prior to engaging in predicate felony or theft once inside the premises, the prosecutor may have a hard time proving you had the intent to commit a crime that never occurred.
  • Mistake: If you reasonably believe you have the right to be on the premises, that the property you entered belongs to you, or that you have permission to borrow the item taken, this may serve as a valid defense as well.

A burglary conviction can result in significant time in state prison or county jail that will harm your reputation, career aspirations and future. If you’re accused of burglary in San Diego or anywhere else in Southern California, do not talk to anyone from law enforcement. If the police try to speak to you, assert your right to a lawyer and refuse to answer questions.

As an experienced defense attorney, I’ve successfully defended many clients in and around San Diego against misdemeanor and felonies like burglary. If you have any questions after reading this, get in touch to discuss the specifics of your case and get a legal opinion on the options available to you.