San Diego Criminal Attorney is a prominent criminal defense firm in San Diego with an outstanding record of excellence. The attorneys of the firm are well conversant with California criminal law and can handle all types of burglary cases for their clients. Burglary incidents are rampant in California and across the country, but these attorneys help devise efficient criminal defenses against the charges. There are various possible defenses for a burglary charge such as innocence where the attorney claims innocence by convincing the jury that the accused committed no such claim. Arguing on the basis of entrapment, though a rare defense strategy, would also set the accused free of a burglary charge. It is also possible for the attorney to prove that the action was not a burglary.

What is Burglary under California Law? 

Penal Code 459 of the state’s laws makes it a burglary offense for someone to enter a commercial or residential building (or a room) with a motive of taking something without the owner’s consent. Burglary is a wobbler; this means that the accused can face either a felony or misdemeanor penalties. These two forms of punishment depend on a defendant’s criminal record and the details of the crime. The prosecution and conviction under the burglary statute are independent on whether the accused accomplished the intended mission. Instead, the mere fact that the person entered the building or room qualifies to be a crime element used by prosecutors to prove a violation of the penal code.  

Under California law, theft and robbery are two similar crimes but separate in one significant respect. Theft is when one obtains possession of another person’s money or property with the intention of permanently depriving the owner of the property. On the contrary, robbery is the illegal act of taking someone’s personal property from their possession and usually done against their will through the use of force or fear. Thus, the major difference between the two crimes is the use of force or fear. For instance, Faith is an office worker in a particular company. While working one night, she enters her boss's office planning to steal some critical files and a laptop. But before executing her motive, the cleaning lady comes in unannounced. Faith could be charged with the crime of burglary even though she never actually stole as planned. Theft, on the other hand, is also known as larceny and would involve the actual taking of the files or laptop.

Furthermore, burglary is not a form of “breaking and entering”. This means that a person could still be violating the burglary laws even if the person did not “break into” the structure by entering through an open window or door. However, the law exempts similar crimes done on a vehicle; a person commits burglary, called auto burglary when they break into a locked vehicle and steals something from the vehicle or steals the automobile altogether. 

The Penalties and Degrees of Burglary

A number of factors are considered in sentencing for burglary, including the severity of the crime; the value of property stolen; the defendant's previous criminal history; or whether violence was involved.

For the less serious burglary crimes, the penalties often result in fine payments and community service. However, offenses that are more serious can result in jail term along with the other penalties. If there was violence in the crime, very severe punishment is given. Studies show that the United States leads the world in the number of burglaries that take place, with a burglary being committed once every 15 seconds, which accounts for the many burglary cases filed in California.

The penalties of burglary depend on the degree of the crime. In California, burglary crimes fall under two categories: the crime is either first-degree or second-degree. When the crime scene is someone’s residence, the burglary is termed as first-degree. On the other hand, a burglary of the second degree involves any structure apart from a residence such as business premises.  As an example, a first-degree burglary would occur when someone breaks into another person’s house without the house owner’s knowledge, and with a motive of stealing valuables. Entering a woman’s apartment (even if it is unlocked) with a rape or assault intention would also qualify to be a burglary offense. 

If convicted of burglary of the first degree, the defendant faces a penalty of two, four, or six years imprisonment. Also known as commercial burglary, the second form of burglary has more severe penalties than the first degree since it is a wobbler offense in California. Thus, the jury could impose either a misdemeanor or felony penalties to the defendant. A felony penalty for burglary entails sixteen months, two years, or three years in a county jail; a misdemeanor entails a maximum county jail term of one year. 

A person facing charges for burglary may also face lesser included offenses or may be able to plea bargain to be convicted of a less serious offense. These offenses include possession of burglary tools as defined under Code 466 PC, grand theft under California Penal Code 487, petty theft, and trespassing. Bargaining for lesser charges is a key defense strategy in most court proceedings; it helps the defendant avoid the possibility of facing felony penalties, which are the most severe forms of punishments.

What Qualifies to be a Residence in a First-Degree Burglary Prosecution?

Various structures or places satisfy the provisions of the law on the first-degree burglary. They include houses, boats, trailer coach, or rooms that are inhabited. In this sense, inhabited implies that another person uses such a structure to live in; if that person was not in the structure during the crime, the structure still remains classified as inhabited. 

On the contrary, a structure does not suit to be termed inhabited if its residents moved out with no intention of returning, an exception where the move was as a result of a disaster or a natural calamity.  For instance, a gas cooker leaks in some residential neighborhood and leads to flame blasts which affect the rest of the houses around. The residents are requested to vacate temporarily as the error gets fixed. Meanwhile, at night, Tony finds his way into the houses through the unlocked windows, stealing valuables such as home wears and jewelry pieces. Even though the house owners weren’t at home at the time of Tony’s act, Tony is liable to charges in accordance with the burglary laws. In this case, Tony’s offense is categorized as first-degree burglary. 

What Does Proposition 47 Imply to Burglary Laws?

Proposition 47 allows victims of burglary charged as a felony to seek re-sentencing, where the crime is charged as shoplifting misdemeanor instead of a felony. This proposition, enacted in 2014, is based on the fact that first-degree charges of burglary with possibilities of felony penalties, in most cases, are similar to the charges on shoplifting. Since most shoplifting charges are misdemeanors, the proposition eases the stigmatization that often follows a felony offense. While Proposition 47 can be a breakthrough to the defendant, it requires experienced attorneys well-conversant with the re-sentencing and burglary provisions for the acceptance of the re-sentencing application. 

Offenses Relating to Burglary in California

Possessing burglary tools.

PC 466 makes it illegal to possess any tools that you would use intently for a burglary crime. These tools include pliers, slim-jims, screwdrivers, crowbars, and hammer. The statute also provides that altering or making a key of someone’s property without their knowledge, and with the aim of entering the property to steal, is a criminal offense.  

If the accused is under arrest while possessing burglary tools, then he/she can face charges of both a burglary and possessing burglary tools. The latter offense is charged as a misdemeanor, with a maximum of six months in county jail prison.


This crime, falling under PC 470, refers to altering, creating or the usage of written documents with the intention of fraud. It is possible that the accused face both forgery and burglary charges if they access a store or bank and forge documents (such as creating check or altering system’s data for your gain).


Provided in Penal Code 211, a robbery offense involves taking property under someone’s possession using fear or force. There is a likelihood of being convicted guilty of both robbery and burglary crimes if: (a) the accused enters someone else space, property, or belonging (b) after entering, the accused intimidates the property owner or uses fear and force to seize the property (c) finally, the accused had the intention of taking the property as they entered the structure. In California, robbery is usually charged as a felony with a sentence of between two and five years in the state prison.


As per Penal Code 602, a person commits a trespassing offense if they enter a property belonging to another person unlawfully. In this case, unlawful entrance means that the person has no right to gain access to the property. The difference between this offense and burglary is that consent of a person's presence is the crucial crime element for a trespass, while a burglary charge relies on the intention of a person while entering a property. Thus, a person entering a property without authorization would face both criminal charges as long as the prosecution can prove that the person's intent was committing a felony. Mostly, defense attorneys seek to reduce the charges to trespass in cases where the defendant is accused of both crimes.

Burglary of a Safe

Under Penal Code 464, it is unlawful to use explosives for opening secure places like a vault or a safe, contrary to which a person violates the burglary with explosives laws. The crime can be committed in either a commercial or a residential place, and it has a more severe punishment compared to a burglary offense. Violating code 464 PC is punishable as a felony, with the accused risking state imprisonment of three, five, or seven years. 

What Should Be Done In case of Burglary Incident before Invasion of the Police?

In case of a burglary incident, crucial points should be observed. This will help the attorney devise a

robust criminal defense strategy or limit the chances of facing evidence tampering charges. These measures are also necessary when the case is as a result of false accusation or mistaken identity. Some of these measures include:

  • Do not attempt to clean up until the police arrive as it is essential that the forensic evidence is not disturbed or destroyed;

  • If it is raining and some evidence like footmarks are visible which may be easily ruined by the rain, try to preserve them as best as you. You can achieve that easily by placing a cover over the marks such as dustbin lid;

  • In case you were able to see the offender or a vehicle that was used try to write down the description or registration number and give to the police;

  • If you notice any of your personal details missing like credit cards or checkbooks, contact your bank immediately to prevent any further access;

  • It is also imperative to remember what the offender touched, especially if you were present when the burglary took place, for instance, distraction burglars may ask for a cup of coffee or water. If this happened do not wash the cup or glass instead bring it to the attention of the police;

  • Try not to touch anything the offender touched or walk anywhere they walked. This will keep the evidence strong and fresh;

  • In case the offender forgets something don’t throw it away or mess with it, instead let the attorney or police know.

Common Defenses for Burglary Charges

Actual Innocence

This defense involves convincing the court that the defendant did not commit the acts as accused. The prosecution has a significant role in proving a defendant’s guilt beyond reasonable doubts, that means, for a defendant to win a burglary case, they must create a strong defense wall and a plausible doubt in the minds of the jury. Defendants can put the prosecution’s evidence to hold and into questioning in many ways such as; presenting a counterfeit or creating a major doubt in the forensic evidence or technique used if any.

Affirmative Defenses

Another defense tactic involves owning up to the crime as accused by the prosecution but arguing that it does not amount to a criminal offense. Most of the made-up arguments include the defendants claiming they had the consent of the owner of the property to enter or have access thus there was no unauthorized breaking and entry. It is also possible to argue that the defendant took an item in question under the owner's consent. Such arguments help expose weaknesses in the prosecutor's proof, thereby, becoming robust bargaining tools for the defendant.


Lastly, the defendant can argue that someone entrapped them into committing the crime by convincing and enticing them when they otherwise would not have. It is difficult to prove using this method, but it can act as a defense for burglary if strongly supported by concrete evidence. If a law enforcement official lures you into committing a particular crime that you wouldn't have committed anyway, then entrapment just occurred. For instance, if a police officer asks you to help him get some cash from some apartment or store and enables you to get in, and probably they offer the burglary tools then that is entrapment. 

At most times, defendants make emotional decisions based on the loved ones or families. Prosecutors take this as a way of building proof of the case talking to investigators would strengthen the prosecutor's claims while making it hard to defend the charges. The most common scenario is when the accused tries to settle the case informally with the alleged victim through bribes or other benefits. Such an act would result in an easy proof that the defendant intended to commit the offense. Thus, it is prudent to seek legal help from a burglary defense attorney and help build excellent defenses against the claims. Once you let your burglary defense attorney know exactly what transpired, putting together a defense strategy would be an easy task.

Find a San Diego Criminal Attorney Specializing in Burglary Cases Near Me

When your freedom is on the line, it is essential to seek help from a first-rate criminal defense attorney. Whether the charges are merely based on a wrong accusation or burglary tools were found in your possession, talking to the prosecutor will only help prove that you committed the crime. Instead, get professional help from our criminal defense attorneys at San Diego Criminal Attorney. We have been rendering legal services to anyone charged with burglary and relating criminal offenses across San Diego for over a decade. Our service is rooted in the understanding of California Law and the uniqueness of every charge. Call 619-880-5474 to get personalized service from one of our legal experts to avoid hefty penalties and unnecessary jail terms.