The crime of burglary is committed when a person enters a structure with the intent to commit a theft or a felony inside the structure.

Of critical importance is whether the prosecution can prove that at the moment of entry into the structure the defendant possessed the specific intent (to steal or commit a felony).

Many burglary cases have been successfully defended by creating doubt on whether this intent occurred at this moment, or rather, was formed at a later point – when the defendant was already inside the structure.

If the intent does not exist at the moment of entry and the defendant commits a theft, or other crime, while in the structure the defendant is presumably guilty of the theft, or other crime – but not guilty of the burglary.

This becomes important because, in particular, it is important to avoid a conviction of a “residential” burglary. Residential burglary is the burglary of a structure that is “primary used” as a residence. Residential burglary is a “strike” in the three strikes law in California.

Non-residential burglary is a burglary of any other structure. Normally, non-residential burglary, which is referred to as “second degree burglary” is the burglary of a commercial structure such as a business.

The prosecutor will very often charge a defendant with second degree burglary when the defendant commits shoplifting.

The pattern of charges in this instance looks like this:

Count 1 – Penal Code Section 459 (second degree) – Burglary

Count 2 – Penal Code Section 488 – Petty Theft

Any time the prosecutor feels he or she may be able to prove that the defendant had the intent to steal (or to commit a felony) at the time of entry into any building it is likely they will charge the defendant with burglary as well as the theft offense itself.

Dan Koukol is a burglary defense attorney with extensive experience. Call today for your free consultation.