For 40+ years, the burglary defense lawyers at Wallin & Klarich have gone above and beyond in helping their clients who are charged with burglary and other related charges. We understand what it takes to successfully defend our clients and fight for their rights. We have the knowledge, skill and resources to take on the tough cases. With offices in Orange County, Torrance, San Bernardino, Riverside, West Covina, Victorville, and throughout the greater Los Angeles area, our dedicated team of burglary defense attorneys are waiting to help you. Call us toll-free today at (877) 4-NO-JAIL for a free phone consultation and get immediate advice from one of our skilled burglary criminal defense lawyers.

What is Burglary? | PC 459

Burglary is defined as the unlawful entry into a building with the intent to commit a crime. Under California Penal Code Section 459, there doesn’t have to be a theft involved to be charged with burglary. The crime of burglary is when someone enters a building, home, structure, room, container, or vehicle with the intent to commit larceny or any felony.

What Must Be Proven | First Degree Burglary

A burglary charge can be a First Degree charge or a Second Degree charge. For a person to be convicted of a violation of PC 459 of the First Degree, the prosecution must prove each of the following:
  1. You entered a home or a room within a home
  2. The Burglary happens in an inhabited dwelling house or vessel, or the inhabited portion of any other building (PC 460(a))
  3. When you entered the home or room, you intended to commit a felony or theft inside.

What Must Be Proven | Second Degree Burglary

All other burglaries that do not fit within the elements of First Degree burglary are considered burglary in the second degree. (PC 460(b)). For a person to be convicted of a violation of PC 459 of the Second Degree, the prosecution must prove each of the following:
  1. You entered an uninhabited shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, inhabited camper, locked-door vehicle, aircraft, or mine or any underground portion 
  2. When you entered the space, you intended to commit a felony or theft inside.

Burglary Penalties and Sentencing | What You’re Facing

The penalties for burglary under PC 459 can be significant depending upon the facts of the case. The severity of the sentencing will be determined by whether the prosecutor charges you with First Degree burglary or Second Degree burglary. First Degree burglary is always charged as a felony. However, Second Degree burglary is a “wobbler” offense and can be charged as a felony or misdemeanor, depending upon the facts of your case.
Wallin & Klarich Criminal Defense Attorney | Orange County

First Degree Felony Burglary

First Degree burglary is always charged as a felony when the victim was inside the residence at the time of the incident. If convicted of First Degree burglary the punishment is as follows:
  • Imprisonment in the state prison for two, four, or six years
  • The judge also has the ability to sentence you to probation. However, if you are given a probationary sentence you must serve a minimum sentence of ninety (90) days in custody

Second Degree Felony Burglary

The punishment if convicted of  Second Degree Felony Burglary is
  • Imprisonment in the state prison for 16 months, two, or three years

Second Degree Misdemeanor Burglary

The punishment if convicted of Second Degree Misdemeanor burglary is::
  • Up to one year in a County Jail

Possession of Burglary Tools | PC 466

One related offense that is often charged alongside a burglary charge, is a violation of PC 466, or possession of burglary tools. PC 466 makes it a misdemeanor to possess “burglary tools” with the intent to break or enter into any structure. Burglary tools under this law can include many items, such as the following examples:
  • Picklocks
  • Crowbars
  • Screwdrivers
  • Vise grip pliers
  • Water-pump pliers 
  • Slide Hammer
  • Slim jim
  • Tension bar 
  • Lock pick gun
  • Tubular lock pick 
  • Bump key 
  • Floor-safe door puller
  • Master key.

PC 466 Penalties and Sentencing | What You’re Facing

A violation of PC 466 is a misdemeanor. If convicted of this crime it is punishable by:
  • Imprisonment in a county jail for up to six months
  • A maximum fine of $1,000.

Possible Defenses to a Burglary Charge in California

There are many valid defenses to a burglary charge. The best defense, if you are facing a burglary crime, is to hire an aggressive team of burglary defense attorneys that have handled hundreds of burglary cases and know what it takes to obtain a successful outcome in your case. Your burglary defense team will develop a strategy and plan and argue the best defenses based upon the facts of your case. Here are some defenses that we have successfully used in the representation of our clients who were facing burglary charges:

Mistaken Identity

If the description of the alleged perpetrator can fit any number of people, your burglary defense attorney may be able to argue that this is a simple case of mistaken identity. This is a strong defense if you have a witness that can place you somewhere else at the time of the alleged act.

Improper Questioning

If the arresting officer failed to read you your Miranda rights at the time of your arrest, anything you said after your arrest might be inadmissible in court. Furthermore, any evidence that was discovered as a result of your answers to improper questions may be thrown out as well.

You Had Permission

You believed that you had permission to enter the area in question or remove the items therein. This defense can be used if there’s evidence that the owner of the property gave you permission, either verbally or in writing.

You Have an Alibi

An alibi is often the best defense in cases where the defendant was not arrested at the scene of the crime. If the lawyer can present witnesses or other evidence that shows that you were somewhere other than at the scene of the crime when the crime was committed, you may be able to avoid a conviction.

Illegal Search and Seizure

The police must have probable cause or obtain a search warrant to search your home or other areas you own. Under the Fourth Amendment of the U.S. Constitution, we are protected from illegal searches and seizures. Any evidence that was obtained through an illegal search will be inadmissible in court and can’t be used as evidence against you.

Lack of Intent

An element that a prosecutor must prove is that you had the intent to commit theft or another felony when you entered a location. If you did not have the intent to commit a crime when you entered the premises, you could be found not guilty of this offense.  Even if you decided to commit a felony or theft crime after you entered the premises you cannot legally be found guilty of burglary. It is your intent at the time you enter the home or building that is key to establishing the required intent element in a burglary prosecution.

Statute of Limitations

The statute of limitations is the “time limit” the police and prosecutors have to file charges against you with the court. If charges aren’t filed within that period of time, then your experienced burglary defense lawyer can file a motion to have the charges against you dismissed. The general rule is that the statute of limitations for a felony burglary is three years, and the statute of limitations for a misdemeanor burglary is one year. However, there are many exceptions and factors that come into play when determining the correct statute of limitations. This is why it’s important to discuss your case with a knowledgeable and successful burglary defense attorney to see what defenses are available in your specific situation.

24/7 Communication With Your Attorney | The Wallin & Klarich Way

Not only do you get the benefit of our 40+ years of experience in successfully defending against burglary charges, but you get a 24/7 communication policy that we have with our clients. Our goal is to make sure you know exactly what’s going on at all stages of your case. We want our clients to be active participants in the defense of their burglary cases. 

History of Success | Wallin & Klarich Track Record of Winning Cases

We have an excellent reputation in Orange County and throughout Southern California as strong advocates for our clients’ rights. The judges and prosecutors throughout the region know that we fight for our client’s rights and will not leave any stone unturned in defending our clients. For 40+ years we have developed this reputation by taking on and winning tough cases.

The Bottom Line

Being arrested and charged with burglary can cause fear and anxiety and can turn your life upside down. But you don’t have to go through it alone. Our help and guidance are only a quick phone call away. Burglary Defense Attorneys of Wallin & Klarich Contact us online or call us today at (877) 4-NO-JAIL for a free phone consultation. With offices in Orange County, Riverside, San Bernardino, West Covina, Torrance, San Diego, Los Angeles, San Diego, and throughout Southern California, we have an office near where you live or work. Many of our initial consultations are done virtually. During your initial consultation, we will ask about the facts of your case. We will discuss every aspect of your case and go over the potential defenses that may be available for you. When it matters most, you can rely on Wallin & Klarich to defend your rights. 

Frequently Asked Questions

First-degree burglary is the burglary of an inhabited house or dwelling. First-degree burglary is always a felony in California. Second-degree burglary is commonly referred to as commercial burglary. Second-degree burglary includes all burglaries that are not first-degree. The most common type of second-degree burglary is theft from a retail store.

If you are being accused of a first-degree burglary then you are facing up to six years in state prison and a strike offense. If you are facing second-degree burglary you are facing up to three years in jail. In either case, the DA must file formal charges against you within three years of the date of the alleged crime. However, remember they do not have to arrest you within that period of time. They merely have to file a formal complaint against you and file it with the court within three years of the date of the alleged crime.

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