burglary as entering a structure with the intent to

commit either a theft or some felony inside.

Now a lot of people confuse burglary with robbery and

theft, and they're actually three very different concepts.

Robbery is when you use violence or threats of

violence to take something from somebody's immediate

presence, like a mugging or a hold-up.

Theft is basically anytime you steal something of value.

Whereas burglary, on the other hand, is when you enter a

structure--

and that could be a house, it could be a business, it could

be a factory--

but entering a structure or a building with the intent to

commit theft or a felony inside.

-For example, a burglary, under California Penal Code

459, can be a situation where somebody breaks into a home

with the intent to steal clothing items, jewelry,

whatever else might be present.

Another example of burglary can be going into a bank to

cash a check that you know is bad.

A different example of burglary can be a situation

where a person goes to a child-care facility with the

intent to commit assault on a child.

Now that isn't theft, but you are going there with the

intent to commit a felony, and therefore, it is burglary.

-Under California Penal Code 459, merely entering a

structure with the intent to commit a theft, or any felony,

once you're inside constitutes a burglary.

So really, entry is the crux of the crime here.

For example, say you enter your neighbor's home with the

intent to steal his computer.

And when you're inside his home, you realize that you

can't find the computer and it's not there.

That still constitutes the burglary, because you entered

the home to commit a theft of his computer

once you were inside.

So it doesn't even matter that you didn't actually

complete the crime.

Thus, entry is really the most important

element of a burglary.

-There's also a lot of confusion between burglary and

the idea of breaking and entering.

The fact is that in California law, breaking and entering is

not an element of burglary.

What that means, essentially, is that you could be convicted

of burglary even if there was no forced entry.

And to give you an example, suppose I'm walking down the

street, and I look inside a house.

And the front door is wide open, and inside the door is a

bicycle that I want to steal.

So I walk through that open front door, take the

bicycle, and leave.

Now in that situation, there was no forced entry.

I didn't even have to open the door.

I mean, even though the door was wide open, the mere fact

that I entered the house or the structure with the intent

to commit a theft inside is enough to make it a burglary.

-Under California Penal Code 459, first degree residential

burglary is treated much more seriously

than commercial burglary.

We treat our homes as our castle, and therefore,

residential burglary has more harsh penalties.

It's always a felony.

It is always a strike.

A person can face up to six years' incarceration as well

as a $10,000 fine for this charge.

A person will be liable for entry into any residence.

It doesn't have to be a house in the traditional sense.

It could be a hotel where a person is staying.

Here in California, there was even a case where a person was

liable for residential burglary for breaking into a

tent where a homeless person was living.

It was a structure.

It had four sides.

It had a roof.

A person was living in there.

That makes it residential burglary.

-By contrast, California Penal Code 459 treats second degree

burglary, otherwise known as commercial burglary, a little

less severely.

Commercial burglary is where you enter a business, or a

factory, or someplace where you know no one resides.

Here in California, commercial burglary is what's called a

"wobbler," which means the prosecutor can choose to file

it as either a felony or a misdemeanor, depending on the

circumstances of the case.

If you're convicted of felony commercial burglary in

California, you face up to three years in state prison.

However, if you're convicted of a misdemeanor commercial

burglary, you only face up to one year in county jail.

-Burglary is one of those crimes that can be

surprisingly difficult for the prosecutor to prove in court.

And in fact, lots of innocent people get wrongfully accused

of burglary, and sometimes,

tragically, wrongfully convicted.

The good news is that here at Shouse Law Group, we've had a

great record of success over the years in fighting burglary

charges and helping our clients to get those charges

reduced or even dismissed.

-One common defense to burglary is what we call

"after-acquired intent." What that means is that you did not

have any intent to commit a theft, you did not have any

intent to commit a felony, until after you were already

inside the structure.

For example, you walk into Bloomingdale's.

You're just going to do some shopping.

But you find this outfit, and you fall in love with this

outfit, but you can't afford that outfit.

And for some reason, spontaneously, you

decide to steal it.

So you walk out of the store with that

outfit and without paying.

Sure you're likely liable for a theft, but

that is not a burglary.

And it is not a burglary because when you walked into

the store, you did not yet have any intent to steal.

-Another common defense in a burglary case is

misidentification.

Mistaken eyewitness ID is the number-one reason for wrongful

arrests and convictions across the United States.

And it certainly results in a lot of innocent people getting

arrested for burglary.

It's very common that a burglary occurs in the

vicinity, and you just happen to match the description that

an eyewitness gives to the police, and you're arrested.

Now it's a defense attorney's job to show the prosecutor,

the court, and even possibly a jury that this is a case of

mistaken identification and that you were not actually the

perpetrator of this crime.

-Another common defense to a burglary charge in California

is what we call being merely present.

What that means is you may be hanging out with some people

who decide to commit a burglary

of a home or a business.

But it wasn't your idea, and you don't really participate.

You were simply in the wrong place at the wrong time with

the wrong company.

And if that's the situation, you should not be held liable

for burglary.

Because ultimately, the prosecutor has to prove not

only that you were present, but that you were in on it.