SANTA BARBARA Criminal Defense Attorney-
Breaking and Entering – Sanford Horowitz Criminal Defense, P.C.
CALIFORNIA PENAL CODE 459: BREAKING AND ENTERING DEFENSE ATTORNEY
The city of Santa Barbara is known for its beautiful views, college campuses, and lavish homes. The area is filled with wealthy families and college students that may not be as well off as surrounding neighbors. Some homes are occupied full time, some are rentals, and some are vacation homes that remain empty for elongated periods of time. This makes Santa Barbara an ideal target for burglary.
Under California Penal Code 459, “breaking and entering” commonly referred to as burglary, is a felony. Burglary is the entering of another’s residential or commercial dwelling with intent to commit theft or a felony. Although this crime is commonly referred to as breaking and entering, forced entry, or breaking, these actions are no longer necessary for you to be convicted of burglary in California.
If you have been arrested for “breaking and entering”, it does not mean that you are guilty. It’s important to vigorously fight a “breaking and entering” charge because a criminal conviction will stay on your record and can adversely affect job and educational opportunities down the road.
As a former Prosecutor for the District Attorney’s Offices in Santa Barbara and San Diego Counties, Sanford Horowitz and his legal team will offer you a free consultation, investigate the evidence against you, and recommend practical steps to achieve the best possible results in your case.
BREAKING AND ENTERING & BURGLARY
“Breaking and entering” refers to the common law (non-statutory) crime of burglary, which consists of the breaking (forced) and entering the dwelling of another with the intent to commit a felony inside. The following examples could result in burglary charges:
- Breaking a car window in order to steal money or items inside;
- Walking into another persons house to steal food or other items (this can be considered breaking and entering even if the doors were left unlocked or open);
- Entering a private office in order to commit a violent felony offense; or
- Entering a closed bank to commit robbery.
Modern-day statutes have changed a number of the aspects of the old common law of burglary. For example, in California, Burglary (Penal Code section 459) is defined as: any person who enters a building or structure with the intent to commit a theft or a felony. The elements of a modern-day burglary include:
In the old common law, burglary required an actual breaking into the building or structure. However, today there is no requirement of an actual breaking into the structure or building.
Just the mere presence of an intruder on the premises is sufficient as long as the intruder’s presence was unlawful. The opening of a door or window of a dwelling is considered a “breaking” even if the door or window was unlocked or slightly open.
The California law also states that constructive breaking such as by fraud, threats, or misrepresentations are also considered a breaking.
There is no requirement of forced entry into the building or structure as long as, at the time of the entry, the intruder intends to commit a theft or felony. Any portion of the intruder inside the structure, even momentarily, is enough to constitute entry. Even the use of a tool to gain entry is sufficient if it is to commit the theft, felony, or to gain entry.
The suspect entering the structure or building must have intent to commit a theft or felony upon entering. There does not have to be an actual theft or felony, only the intent to commit one.
The old common law required that the burglary be the dwelling or house of another. Burglary today is not limited to the dwelling of another. In fact, burglary today includes structures such as stores, warehouses, tents, house boats, hotel rooms, railroad cars, trailer coaches, locked vehicles’, and aircrafts.
BREAKING AND ENTERING PENALTIES
In order to be convicted of burglary in California, the prosecution must prove that the defendant:
- “Entered” a building or premise either partially or completely; AND
- Did so with the intent to commit theft or a felony
It is not necessary for the defendant to have “broken” into the premises nor for the defendant to have successfully completed or fully carried out the theft or felony so long as the intent can be proven.
FIRST DEGREE BURGLARY
First-degree burglary is always a felony in the state of California. Penalties for a first-degree burglary conviction are:
- a two, four, or six-year sentence in a state prison; and
- a “strike” on the defendant’s record.
Under California’s Three Strikes Law, if you receive a strike for a felony conviction, such as burglary and you are convicted of a second felony, the prison sentence for the second felony will be doubled. A third strike (a third felony conviction) will result in a life sentence.
SECOND DEGREE BURGLARY
Second-degree burglary is a “wobbler” charge in Santa Barbara, which means that it can be charged as either a felony or a misdemeanor depending on the details of the case including the value of stolen items.
The maximum penalty for a misdemeanor second-degree burglary conviction is:
- one year in county jail; and
- a fine of $1,000
Penalties for a felony second-degree burglary conviction are:
- a 16-month, two-year, or three-year sentence in a state prison
It is possible to have a felony second-degree burglary charge reduced to a misdemeanor, specifically if the total value of stolen goods totals less than $950.
FIGHTING A BREAKING AND ENTERING CHARGE
A skilled criminal defense attorney may be able to raise several legal defenses to PC 459. Some of these defenses might include:
You have an alibi to show that you are not the person that the prosecution claims committed the burglary.
You never entered another person’s dwelling because you never crossed the structures outer boundary.
You did not intend to commit theft or any felony crime before you entered the dwelling or vehicle.
If there is a weakness or inconsistency in the evidence presented by the prosecution, your attorney may be able to challenge its validity.
DURESS OR THREATS
If you were forced or threatened to break and enter the dwelling or vehicle, you should not be convicted of this crime.
If you are facing a charge of felony breaking and entering, Santa Barbara County defense attorney Sanford Horowitz Criminal Defense, P.C. knows the law and the best strategies for your defense. We have extensive experience representing clients throughout the Santa Maria area and want to help you understand the charges you are facing as well as what your rights are under the law. If you’d like to schedule a consultation about your case, call 805-452-7214 or fill out this contact form.
BREAKING AND ENTERING FAQ
I HAVE A CONVICTION FOR PC 459 ON MY CRIMINAL RECORD. IS IT POSSIBLE TO HAVE IT EXPUNGED?
Although there are some penal codes that cannot be expunged, PC 459 is not one of them. Contact our firm today to obtain a free case evaluation and find out whether you are eligible for an expungement.
WHAT IS THE DIFFERENCE BETWEEN BURGLARY AND ROBBERY?
Burglary and robbery both often involve theft, but there are several differences between the two crimes. Burglary involves the unlawful entry into a structure whereas robbery does not. Robbery involves the use of force or fear upon another person to obtain property whereas burglary does not. Both crimes carry varying penalties upon conviction depending on the circumstances of the crime.
WHAT IF I ONLY INTENDED TO SNOOP AROUND WHEN I ENTERED SOMEONE ELSE’S PROPERTY, BUT HAD NO INTENTION OF TAKING ANYTHING UNTIL I GOT THERE?
You must have the intent to commit a theft or felony before or while you enter someone else’s dwelling. If your intent was to “snoop around”, then you may have a plausible defense to a burglary charge. However, you could be convicted of the crime of trespassing on private property. A skilled criminal defense attorney may be able to get your charges reduced or dismissed altogether.