California Penal Code 459 PC "2nd Degree Burglary" is a "wobbler" meaning this charge can be filed as a misdemeanor or a felony depending on the circumstances of the case and your criminal history. Burglary can also be charged in the "1st Degree."
What Must Be Proven in a Misdemeanor 2nd Degree Burglary Case?
PC 459 "2nd Degree Burglary" requires the following to be proven:
- The defendant entered a building;
- The defendant did so with the specific intent to steal and take away property belonging to another, and to deprive the owner permanently of that property; or
- The defendant did so with the specific intent to commit the crime of burglary.
In the United States justice system, a defendant is presumed innocent until proven guilty. The prosecutor has the burden of proving guilt beyond a reasonable doubt that a 2nd degree burglary occurred.
What are the penalties for a misdemeanor 2nd Degree Burglary?
PC 459 as a misdemeanor charge has a maximum penalty of a fine up to $2,000 and/or up to 1 year in county jail.
What are the defenses to misdemeanor 2nd Degree Burglary?
There was no intent to steal or take away property
The defendant must have specific intent to steal. The defense does not need to prove why the defendant entered the building, it is up to the prosecution to prove the intent was to steal. This can be difficult to prove in certain situations such as when no property had been removed at the time the defendant was caught in the building.
There was no intent to permanently deprive the owner of their property
Stealing a neighbors tools from their garage for a quick project before returning them is not a burglary. The defendant has not intent to permanently deprive the owner of the property if the intent is to return the item in the future.
The defendant believed erroneously believed the property belonged to them
If the defendant believed the property was theirs but is mistaken than the defendant lacked the specific intent to steal.
Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results. The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.