Burglary involves entering a structure with the intent to commit a crime. It is a grave offense that may land you in jail or prison for a considerable amount of time. According to California law, a burglary can be either first degree or second degree.

So, what is the difference between the two charges? We shed light on that below — and our criminal defense attorneys, Michael Karagozian and Allyson Rudolph, can help you defend against either charge.

What Is Burglary?

According to California Penal Code Section 459, a burglary occurs when someone enters a dwelling space or residence to commit grand or petit theft or any other felony. The structure can be a residential property, commercial premises, locked or sealed cargo container, storage unit, hotel room, tent, railroad car, warehouse or store.

The prosecution must prove these elements beyond a reasonable doubt to convict an individual of burglary in violation of Penal Code 459 PC:

  1. You entered into an inhabited residence, building or structure
  2. You did so with the specific intent to commit grand or petit larceny or any felony 

The prosecutor’s task is to prove that you entered the structure intending to commit a crime rather than simply demonstrating you committed the crime within the building. Essentially, the prosecution has to prove your “guilty mind.” The big question is: what makes burglary a first degree or second degree crime?

Distinguishing First Degree Burglary From Second Degree Burglary

In California, the main difference between first and second degree burglary is the type of structure the accused entered to allegedly commit the crime. First degree burglary involves a residential property, while second degree burglary occurs in a non-residential building, such as a business facility.

Another distinction between the two is the level of the offenses. First degree burglary in California is a felony while second degree burglary is regarded as a wobbler that can be charged as a felony or a misdemeanor. Therefore, a first degree burglary charge will attract more stringent penalties, as you will see below.

What Are the Penalties of First and Second Degree Buglary?

First and second degree burglary offenses can carry different penalties. For first degree burglary, the punishment can be formal probation, a sentence of up to six years in a California State Prison, fines, restitution and other terms.

It is worth noting that a first degree burglary felony counts as a strike offense under California’s Three Strikes Law.

The penalties for a second degree burglary are different. The prosecutor may bring felony or misdemeanor charges, each with different consequences. A felony second degree burglary conviction may come with felony probation, a county jail term or a sentence of up to three years in a California State Prison, fines, restitution and other terms.

On the other hand, a misdemeanor conviction for a second degree burglary has these possible penalties: misdemeanor probation, up to a year in county jail, fines, restitution and other terms.

Factors Determining a Second Degree Burglary Charge

First degree burglary involves entering into an inhabited building or dwelling and is a felony. But what makes a second degree burglary charge a felony or misdemeanor? Here are just a few factors that may affect the prosecutor’s decision:

  • If you have a criminal record or history. The prosecution may pursue felony charges for second degree burglary if you have a prior conviction of burglary, theft or any other crimes.
  • The evidence that the prosecution has to allege the case, i.e. video footage, pictures, DNA. 
  • The alleged crimes you committed after entering the structure. You might face a lesser charge if the theft did not involve violence. However, you could be charged with felony second degree burglary rather than a misdemeanor if there are significant offenses alleged after entering the location.

Possible Defenses to a First or Second Degree Burglary Charge

A savvy defense attorney will develop an elaborate strategy and plan to argue the facts of your case to defend your rights. Luckily, there are multiple defenses to employ in your case against a first or second degree burglary charge. Here are some of them:

Mistaken Identity

Your burglary defense attorney can take the identity mistake defense, especially if the general description of the alleged perpetrator fits various people. This defense could work if you have a credible witness who can place you at a different location as the burglary occurred.

You Had Permission to Enter the Property

Another possible defense is you had permission from the property owner to enter the structure and remove the items. 

You Have a Strong Alibi

An alibi defense can show you were not at the crime scene, meaning it would have been impossible to commit the crime. Your attorney can present evidence or have witnesses testify that you were far away from the burglary location when the crime took place.

The Lack of Intent

Prosecutors must show that when entering the structure you intended to commit a theft or felony.

Illegal Search and Seizure

The Fourth Amendment of the United States Constitution protects from illegal searches and seizures by law enforcement officers. The police should not search your house or property without a search warrant or probable cause. Your attorney can use this defense strategy to file motions on your behalf if the police conducted an illegal search and seized items from your premises as evidence to file a burglary case against you.

The Statute of Limitations

The statute of limitations refers to the time limit or legal period within which the prosecutors have to file charges against an offender within the court of law. If the police and the prosecutors failed to file the burglary charges within the set time limits, your attorney could file a motion for dismissal of all charges. 

Common FAQs We Get About Burglary Charges in California

  1. What is the difference between first degree and second degree burglary?

In California, burglary in the first degree refers to a crime occurring in a residential dwelling. Second degree burglary, sometimes known as commercial burglary, is often burglary in a non-residential or business property.

  1. Is first degree burglary worse than second degree burglary?

First degree burglary does have more serious consequences compared to second degree burglary.

  1. What counts as a residence?

According to California law, a residence can be an inhabited house, boat, floating home, trailer coach or motel/hotel room. Inhabited means that someone dwells on the property, but it does not necessarily mean that the person must be home during the burglary incident.

  1. What does it mean to enter a structure?

Entering a structure is a vital element of a legal California burglary offense. Under the California Penal Code 459, you have entered a structure if some part of your body or object under your control penetrates the area inside a building’s outer boundary.

  1. How long is a burglary jail or prison term in California?

You may face up to six years in a California state prison if found guilty of first degree burglary. As for second degree burglary, the penalty could be a county jail term of 12 months for a misdemeanor or up to three years in prison for a felony charge.

To Summarize

People facing burglary charges should seek legal counsel from experienced attorneys. No matter what the charges are, first degree and second degree convictions carry serious consequences, including a lengthy jail or prison sentence. Do not hesitate to contact Karagozian & Rudolph PC for legal representation.