VENTURA Criminal Defense Attorney-
Breaking and Entering – Sanford Horowitz Criminal Defense, P.C.
CALIFORNIA PENAL CODE 459: BREAKING AND ENTERING DEFENSE ATTORNEY
The city of Ventura is a beach town known for the activities, surf, and the night life. When visiting the city you will come across a variety of bars, an abundance of surfers, and a few homeless. Although Ventura County is overall considered safe, intoxicated patrons and desperate individuals make the area a target for “breaking and entering”.
Under California Penal Code 459, “breaking and entering” commonly referred to as burglary, is a felony. Burglary is the entering of another person’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.
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 consisted of the breaking (forced) and entering of the dwelling of another at night with the intent to commit a felony inside. The following examples could result in burglary charges:
• Walking into your neighbor’s garage in order to steal his lawn mower.
• Breaking a car window in order to steal a wallet that has been left on the dashboard.
• Entering a closed bank in order to rob it.
• Breaking into a storage unit in order to commit theft.
• Using a crowbar to break the window of a storage shed with the intent of committing theft.
Modern day statutes have changed a number of the aspects of the old common law of burglary. For example, in Ventura, 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:
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 a 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 theft, a 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.
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.
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 refers to the entering of an inhabited structure in order to commit theft or a felony. There does not need to be anyone inside of the structure during the time that the burglary takes place. First-degree burglary is a felony charge that carries severe penalties if convicted.
Second-degree burglary refers to the entering of structures or other premises besides residences. These premises could include commercial buildings, vehicles, boats, or animal pens among many others. In California, second-degree burglary is a “wobbler” charge, which means that it can be prosecuted as either a misdemeanor or a felony.
FIGHTING A BREAKING AND ENTERING CHARGE
DURESS OR THREATS
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?
CAN I BE CHARGED WITH BREAKING AND ENTERING IF I CLIMB UP TO SOMEONE’S BALCONY BUT CAN’T GET INSIDE?
Yes. Balconies that are both attached on the second floor or higher, and designed to be accessed only from inside an apartment or home qualifies as the building’s outer boundary. Thus, if you climb onto someone’s balcony intending to steal or commit any felony, you’ve entered the dwelling and can be charged with breaking and entering.