1st and 2nd Degree Burglary

What is the Difference Between 1st and 2nd Degree Burglary?

The California Penal Code 459 defines burglary as breaking and entering a structure with the intent to steal or commit a felony. While most people think of breaking and entering a home as the only type of burglary, a “structure” is considered any building, including a residence, a business, a storage container, or even a tent. Under the law, there are two types of burglary: first degree and second degree. An individual can be charged with either first or second-degree burglary, depending on which type of structure he or she entered in order to commit a crime. Burglary of a residence falls under the first-degree burglary, while entering a non-residential structure, such as an office building or storage unit, falls under second-degree burglary.

Robbery vs. Burglary

robbery vs burglaryBoth robbery and burglary are crimes that, in many cases, involve theft. Sometimes these terms seem interchangeable. However, there is a distinct difference between robbery and burglary. Robbery is a crime where someone takes something of value directly from someone else. This typically includes taking money or property directly from someone without permission with the intent to keep the property permanently. This crime is often committed through the use of force or intimidation. Burglary, however, does not always involve another person. An individual can commit burglary without seeing or interacting with anyone else. The action of illegally entering a building with the intent to commit a crime, such as stealing something, is the definition of burglary.

Punishments for Burglary

punishments for burglaryThe type of burglary an individual is charged with will determine the type of punishment he or she will face if convicted. Under California Penal Code Section 1192.5, first-degree burglary is considered a “strike” and carries a much harsher punishment than second-degree burglary. A first-degree burglary conviction is punishable by two, four, or even six years in prison and counts as a strike on the individual’s criminal record. Because of this “strike” status, the individual would be required to serve 85 percent of his or her sentence if convicted. Individuals who have a prior strike will face even harsher punishment, with their sentence being doubled and a requirement to serve at least 80 percent of the jail time. A third strike could carry a prison sentence of 25 years to life.

Second-degree burglary is considered a “wobbler,” which means that prosecutors can charge it as either a felony or a misdemeanor. The charge an individual faces will depend on various factors, including:

  • Whether the defendant has any prior convictions
  • What crime was committed after the defendant entered the structure
  • Whether the prosecutor has enough evidence to stand a good chance of getting a conviction

A misdemeanor second-degree burglary conviction could be punished by up to 364 days in county jail. A felony second-degree burglary conviction is punishable by up to three years in county jail.

Violence and Burglary

violence and burglary

The use of force is an important consideration when determining punishment for a burglary charge. An individual can be charged with burglary whether or not he or she used force to enter a building. Simply opening an unlocked door and entering without permission with the intent to commit a crime would be considered burglary. One does not have to smash a window or break a lock for their illegal entry to be considered burglary.

Building a Defense for Burglary Charges

defenses drug cases

A burglary can be considered a simple misdemeanor with a mild punishment, or a felony with a hefty jail sentence. Because the outcome can fall into such a wide range of possibilities, it is important to have a competent attorney with experience defending clients facing burglary charges.

To be convicted of burglary, the prosecutor must prove that the defendant intended to commit a crime when entering the structure, regardless of whether or not the defendant faces first or second-degree burglary charges. This leaves many possibilities for creating a solid defense, including:

  • The defendant was invited into the structure by the resident/owner and was not trespassing
  • The defendant was intoxicated at the time of entry and lacked the capacity to form intent
  • The defendant did not know the people he or she was with were going to commit a crime
  • The officer who arrested the defendant violated one or more of his/her constitutional rights

If you are facing burglary charges, be sure to seek the help of a skilled and knowledgeable defense attorney.

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