San Diego Criminal Defense Lawyer Explains Commercial Burglary Laws in California:

Burglary is committed when a person enters a structure or specified enclosure with the intent to commit theft or any other felony.[1]  If the Burglary takes place in a structure that is not inhabited, lived in or used as a residence it is considered a Commercial Burglary, also known as second degree burglary.

What does the prosecutor have to prove to convict me of Commercial Burglary?

The prosecutors must prove that:

1)   You entered a building/room/vehicle, and

2)   When you entered you intended to commit theft or another felony^[2]

The prosecutor must prove that you entered a structure. Entering a structure is considered passing any part of your body (or instrument under your control) through the outer boundary of the structure. The outer boundary includes window screens.[3] Using a crow bar to open the trunk of a car with the intent to steal the contents inside, is burglary.

Some of the forty places considered structures include vehicles, boats, stores, warehouses, businesses, barns, railroad cars and boats.[4]

Commercial burglary charges are most commonly brought by prosecutors when it appears a person entered a place of business, such as a retail store, having already formed in his or her mind the intent to steal.

It may be very difficult for prosecutors to prove beyond reasonable doubt that you had the requisite intent at the time of entering the structure, as opposed to forming the intent to steal after having already entered. Different types of evidence of your intent might include the following:

• you brought an empty purse or bag into the store to conceal stolen merchandise
• you carried no means of payment with which to buy merchandise
• you confessed to law enforcement or loss prevention officers at the scene
• your criminal record shows a previous theft crime conviction at the same store
• you carried scissors, a knife or other means of detaching price tags and sensors off the stolen item
• you carried burglary tools

You do not have to actually complete the theft to be charged with burglary. If a thief gets caught in a museum while trying to take a piece of art, he could be charged with second degree burglary.

Many people use the term “breaking and entering” when talking about burglary. However, you do not have to “break” or force your way into a structure to be charged with burglary. For example, instead of bashing in the window of a store, you find a door wide open to the public. If you enter intending to take property that does not belong to you, you are committing burglary.

Prosecutors in El Cajon and San Diego often charge an accused with commercial burglary, grand theft, and petty theft. The reason is because if they cannot prove that you intended to steal at the time you entered the store, they still may be able to prove that you committed theft.

How do I fight a Burglary charge?

A Burglary charge is a serious matter. You should meet with a lawyer as soon as possible to start planning your defense. Information such as alibis, documentation of ownership and witnesses may be useful in developing a successful strategy. Be ready to present any information you have to your lawyer. Common strategies used to fight Burglary charges include showing you had no intent to commit a crime or claiming a mistake of fact.  In some cases, showing proper consent may be relevant. Negotiating for lesser charges or a dismissal may also be part of your defense strategy.

What is the sentence for second degree Burglary?

A conviction of second degree Burglary could be either a misdemeanor or a felony, depending on your criminal history, the circumstances of the case, and the value of the items taken.  A felony sentence could carry 16 months, 2 years or 3 years in a state prison and a maximum fine of $10,000. If you are convicted of a misdemeanor, you would face up to one year in a county jail and no more than a $,1000 fine.[5]

Additions:

• If it is proven that you used explosives or torches to open a safe during the burglary your felony sentence in a state prison could be increased by 3, 5 or 7 years.[6]
• If, during the burglary, you caused “great bodily injury” to another person you would face an additional 3-6 years in the state prison, depending on the nature of the injury and victim.[7]

We have had tremendous success in convincing prosecutors to proceed with misdemeanor rather than felony charges, and to dismiss the commercial burglary charges entirely.  To learn more about how we can help you, read our free ebook, Fighting Your Criminal Case. or send us an email.