Burglary remains one of the most frequently prosecuted crimes in California, with significant implications for those accused. In 2022 alone, San Diego, a city in California, reported [1] over 7,300 burglary offenses, highlighting the urgency of understanding the legal distinctions between first and second degree burglary. In 2022, 60% of burglaries were categorized as forced entry, while 36% were classified as non-forced entry, and 4% were labeled as attempted or unsuccessful burglaries. Notably, over the past five years, the percentage of forced entry burglaries has consistently increased, rising from 41% in 2018 to 60% in 2022.
First-degree burglary, often involving residential properties, carries harsher penalties due to the heightened risk to personal safety. In contrast, second-degree burglary typically pertains to commercial establishments and is classified as a “wobbler,” allowing for a range of charges from misdemeanors to felonies[2].
This article provides a comprehensive overview of second-degree burglary, its legal implications, and how it differs from first-degree burglary under California Penal Code Section 459.
Overview of Burglary Laws under Penal Code 459 in California
California Penal Code Section 459 [3] defines burglary as the act of entering a building, room, or locked vehicle with the intent to commit a felony or theft. This statute establishes the foundational elements of burglary charges in the state, emphasizing the necessity of intent.
The general intent required for a burglary charge means that the individual must have the intention to commit a crime at the time of entry, regardless of whether the crime is ultimately executed.
Burglary is categorized primarily into first and second degrees, with each classification carrying distinct legal definitions and penalties.
What Constitutes First-Degree Burglary?
First-degree burglary is defined as the unlawful entry into a residence with the intent to commit a crime. This type of burglary is often referred to as residential burglary and is considered more serious due to the potential threat to personal safety involved.
First-Degree Burglary: Penalties and Consequences
A conviction for first-degree burglary is classified as a felony in California [4]. The penalties for this crime can include:
- Prison Sentence: Two, four, or six years in California state prison.
- Fines: Up to $10,000.
- Probation: Felony probation [5]may be available but typically requires the defendant to meet specific criteria.
First-degree burglary also counts as a “strike” under California’s Three Strikes Law [6], meaning that subsequent felony convictions could lead to significantly harsher penalties. Including the “person present” allegation for a 1st-degree charge elevates it to a violent strike, resulting in a harsher prison sentence, whereas a regular 1st-degree charge without this allegation is treated as a serious strike, leading to a lighter sentence.
Understanding Second-Degree Burglary
Second-degree burglary, on the other hand, refers to unlawful entry into any structure that is not a residence, such as commercial properties, warehouses, or other non-residential buildings [7]. This classification is often referred to as commercial burglary.
2nd Degree Burglary: Penalties and Consequences
Second-degree burglary is classified as a “wobbler,” meaning it can be charged as either a felony or a misdemeanor, depending on the circumstances and the defendant’s criminal history. The potential penalties for a felony 2nd-degree burglary conviction include:
2nd Degree Offense – Felony Charges:
- Prison Sentence: Sixteen months, two years, or three years in county jail.
- Fines: Up to $10,000.
2nd Degree Offense – Misdemeanor Charges:
If charged as a misdemeanor, the penalties may include:
- Jail Time: Up to one year in county jail.
- Fines: Up to $1,000.
The flexibility in charging second-degree burglary allows prosecutors to consider the specifics of the case, including the defendant’s past criminal record [8] and the nature of the offense.
Key Differences Between First and Second-Degree Burglary
Understanding the differences between first and second-degree burglary is essential for legal clarity. Below is a comparison of the two:
| Aspect | First Degree Burglary | Second Degree Burglary |
|---|---|---|
| Definition | Entry into a residence with intent to commit a crime | Entry into any non-residential structure with intent to commit a crime |
| Classification | Always a felony | Wobbler (can be felony or misdemeanor) |
| Penalties | 2-6 years in prison, fines up to $10,000 | Felony: 16 months to 3 years; Misdemeanor: up to 1 year in jail, fines up to $1,000 |
| Strike Status | Counts as a strike under Three Strikes Law | Does not count as a strike |
In California, a “strike” refers to a conviction for a serious or violent felony under the state’s Three Strikes law. The Three Strikes law imposes harsher sentences on repeat offenders who have prior convictions for serious or violent felonies.
Under the Three Strikes law:
- A first-degree burglary conviction always counts as a strike. This means that if someone is convicted of first-degree burglary, it will be counted as a “strike” on their criminal record.
- If someone has a prior conviction for first-degree burglary and they are later convicted of any new felony, they can be sentenced as a “second striker.” This doubles the normal sentence for the new felony.
- If someone has two prior convictions for first-degree burglary or other serious/violent felonies and they are convicted of a new felony, they can be sentenced to 25 years to life in prison as a “third striker.”
In contrast, a second-degree burglary conviction does not count as a strike under the Three Strikes law. This is because second-degree burglary is considered a less serious offense, as it involves entering non-residential structures rather than inhabited dwellings.
So in summary, the “strike” status refers to how a burglary conviction will impact a person’s sentence if they commit future felonies, with first-degree burglary counting as a strike and second-degree burglary not counting. The Three Strikes law aims to impose harsher punishments on repeat offenders who commit serious crimes.
What are Legal Defenses Against Burglary Charges?
In defending against burglary charges, several legal defenses may be employed. Common defenses include:
- Lack of Intent: The prosecution must prove that the defendant intended to commit a crime at the time of entry. If there is reasonable doubt regarding this intent, the charge may be challenged.
- Mistaken Identity: If the defendant can demonstrate that they were not the individual who entered the property, this defense may be effective.
- Consent: If the defendant had permission to enter the property, this could negate the burglary charge.
Legal representation is crucial in burglary cases, as an experienced attorney can help navigate the complexities of the law and develop a strong defense strategy. Reach out for an expert consultation now!
Understanding the distinctions between first and second-degree burglary in California is crucial for anyone facing such charges. With the increasing prevalence of burglary offenses, particularly forced entries, the legal consequences have never been more significant. First-degree burglary, with its severe penalties and strike status, underscores the importance of personal safety, while second-degree burglary, though more flexible in its classification, still carries serious repercussions.
For those accused of burglary, the path forward can be daunting. The difference between a felony and a misdemeanor, or the impact of a strike on your criminal record, can dramatically influence your future. Given the complexities of these laws, securing experienced legal representation is not just advisable—it’s essential. A criminal defense attorney at Manshoory Law can help clarify your legal options, build a strong defense, and guide you toward the best possible outcome. In the face of such serious charges, taking immediate action could make all the difference.
Resources
- San Diego Association of Governments. (2023, May 3). 43 Years of Crime in the San Diego Region: 1980 Through 2022. SANDAG. https://www.sandag.org/-/media/SANDAG/Documents/PDF/data-and-research/criminal-justice-and-public-safety/criminal-justice-research-clearinghouse/cj-bulletin/cj-bulletin-43-years-of-crime-san-diego-region-2023-05-03.pdf
- Manshoory, S. (2016, December 19). Misdemeanor, felony and “Wobbler” offenses in CA | Manshoory Law. Manshoory Law Group, APC. https://manshoorylaw.com/blog/misdemeanor-felony-and-wobbler-offenses-in-california/
- California Code, PEN 459. (n.d.). https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=459.&lawCode=PEN
- California Penal Code 17B: How to reduce a felony to a misdemeanor | Manshoory Law. (2024, April 26). Manshoory Law Group, APC. https://manshoorylaw.com/california-penal-code/penal-code-17b/
- Parker, D. (2023, November 14). Felony probation in California: How does felony probation work ? Manshoory Law Group, APC. https://manshoorylaw.com/blog/felony-probation/
- Manshoory, S. (2023, November 17). California Three Strikes Law | Understanding CA 3 strike rule. Manshoory Law Group, APC. https://manshoorylaw.com/blog/california-three-strikes-law/
- RCW 9A.52.030: Burglary in the second degree. (n.d.). https://app.leg.wa.gov/rcw/default.aspx?cite=9A.52.030
- Los Angeles Criminal Background Check | Criminal Record | Manshoory Law. (2022, January 31). Manshoory Law Group, APC. https://manshoorylaw.com/investigations/criminal-background-check/
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