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Burglary1Penal Code Section 459 States:

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”

The crime of burglary is a very serious offense that can be punished by up to 6 years in state prison. The critical issue with regard to sentencing for a conviction of burglary is whether or not the dwelling or structure entered was “inhabited”. If it was, then the defendant will generally be charged with ‘first degree’ burglary, which constitutes a ‘strike’ under the California Three Strikes Rule and will more often than not carry a state prison sentence.

Entry into an inhabited structure for the purpose of committing a crime is commonly referred to as ‘Residential’ burglary.

If the structure burglarized is ‘uninhabited’, then the offense is charged as ‘second degree’ burglary and a probationary sentence is more likely to be imposed.

BURGLARY: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 1700. Burglary

The defendant is charged [in Count ] with burglary [in violation of Penal Code section 459].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant entered (a/an) (building/room within a building/locked vehicle/ <insert other statutory target>);


2. When (he/she) entered (a/an) (building/room within the building/locked vehicle/ <insert other statutory target>), (he/she) intended to commit (theft/ [or] <insert one or more felonies>).

To decide whether the defendant intended to commit (theft/ [or] <insert one or more felonies>),please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].

<Give the following bracketed paragraph if the second degree is the only possible degree of the charged crime for which the jury may return a verdict.>

[If you find the defendant guilty of burglary, it is burglary of the second degree.]

A burglary was committed if the defendant entered with the intent to commit (theft/ [or] <insert one or more felonies>). The defendant does not need to have actually committed (theft/ [or] <insert one or more felonies>) as long as (he/she) entered with the intent to do so. [The People do not have to prove that the defendant actually committed (theft/ [or] <insert one or more felonies>).]

[Under the law of burglary, a person enters a building if some part of his or her body [or some object under his or her control] penetrates the area inside the building’s outer boundary.]

[A building’s outer boundary includes the area inside a window screen.]

[The People allege that the defendant intended to commit (theft/[or] <insert one or more felonies>).You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]

For the man in the street, probably the biggest surprise in the burglary statute is this crime is not necessarily a ‘theft’ related offense. The accused is guilty of ‘burglary’ if he or she enters any structure, inhabited or not, with the intent to commit any ‘crime’ inside.

A person can be charged with ‘Commercial’ burglary when they enter a store with the specific intent to steal. Typically, ‘commercial’ burglaries is charged as a misdemeanor when the value of the property taken is less than $400.00. However, if the value is over $400.00 the burglary will be charged as a felony. This is commonly refereed to as grand theft. Commercial burglary is not a strike.

If you are not a United States citizen, your immigration status or application for citizenship will be in jeopardy if convicted of Burglary.

If you or someone you know has been charged with Burglary, contact John J. Stanley & Associates at (818) 769-5200 for your free consultation.

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