California Breaking and Entering Law (Penal Code 459)

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 What Is Considered Breaking and Entering in California?

California Penal Code 459 defines burglary as entering into a residential or commercial structure or a locked vehicle, as in an auto burglary, with the intent of committing grand larceny, petit larceny, or any other felony offense. It is important to note that an individual may be charged with burglary even if no forced entry occurs.

In California, burglary is defined as physically entering a structure with the intent to commit a petty theft or a felony while they are inside the structure. The actual act of entering into the structure is commonly referred to as breaking and entering.

This is a criminal offense in California. Charges for breaking and entering are commonly associated with the crime of burglary.

Breaking and entering is generally defined as entering into a structure or dwelling without having the permission of the owner. The entry can be the result of using force or simply entering the structure.

Common examples of breaking and entering in California include:

  • Entering into an individual’s home through an open window;
  • Breaking a door and entering into a residence when no one is present;
  • Entering into a retail store after it is closed and taking the product;
  • Going back to a past place of employment and taking files that do not belong to an individual after closing;
  • Walking into an individual’s unlocked property to take items;
  • Going into an already business to commit a crime; and
  • Walking into a private office to steal.

If an individual has any questions regarding burglary or breaking and entering laws in California, they should consult with a local California attorney.

What Will the Prosecution Have to Prove to Convict Me of This Crime?

Similar to any type of crime, all of the elements of an offense have to be proven in order to convict a defendant of the crime. Each case is unique, and the facts of the case will determine the outcome.

The elements of breaking and entering are similar to burglary and include:

  • The defendant went into a structure or property, including a home, locked car, or room within a property;
  • The defendant had the intent to commit a felony or petty theft.

What Is the Punishment for Breaking and Entering?

Typically, breaking and entering is a misdemeanor. Depending on the jurisdiction, however, it may be categorized as a felony.

A misdemeanor is a less serious crime than a felony and carries lighter penalties. Penalties for misdemeanors may include:

  • Less than one year in jail;
  • Community service;
  • Fines;
  • Rehabilitation; or
  • A combination of the above.

A felony, in contrast, may result in a year in prison. Whether the crime is charged as a misdemeanor or a felony, if a defendant is convicted, it may result in incarceration and criminal fines.

A defendant will face legal consequences if convicted of breaking and entering. If property damage occurred, the defendant may be required to pay criminal restitution to compensate the victim for the damage.

Similar to other crimes, the age of the defendant who committed the crime may also be considered by the court. Breaking and entering charges and punishments will be different for juveniles than for adults.

If the burglary is charged as a felony, there may be additional consequences depending on the amount of damages to the property of the victim. Breaking and entering may be charged as either first-degree or second-degree felony crimes.

First-degree breaking and entering is a felony that is punishable by criminal fines of up to $10,000 and between 2 to 6 years in prison. It will also count as a strike under California’s three-strikes law, which allows for sentence enhancement.

Breaking and entering is categorized as a wobbler crime. This means that the crime can be charged as a felony or as a misdemeanor.

If breaking and entering is charged as a misdemeanor, it may be punished by up to one year in jail and criminal fines of up to $1,000. If it is charged as a second-degree felony, it is punishable by two to three years in prison and criminal fines of up to $10,000.

What Is the Statute of Limitations for Breaking and Entering?

In California, the statute of limitations for breaking and entering is three years. Other crimes that have a three-year statute of limitations include theft of a firearm and assault.

What Are the Defenses to Breaking and Entering?

There are some legal defenses that may be available to a defendant charged with breaking and entering, which may include, but may not be limited to:

  • Consent: If the owner of the premises consented or gave permission to the defendant’s presence on the property, it may serve as a defense;
    • However, if the defendant exceeds the consent of the homeowner’s permission, this defense may not apply;
    • A common example of consent would be when one individual gives another individual the key to watch their house overnight;
  • Authorized to enter: Similar to consent, if an individual grants authority to the defendant, it may serve as a defense against criminal charges;
    • However, the burden or liability may be shifted to the other party;
    • The authorization to enter is a defense, but it cannot exceed the scope of the permission to enter;
    • A common example of authorization to enter is when the defendant is given a key card to enter a building after hours; and
  • Mistake: The defendant had to have the necessary intent to break into the dwelling place of another. In some cases, it can be a defense if the defendant believed that they were entering their own property;
    • This defense will only work if the mistake of the defendant prevented them from forming the intent of breaking and entering.

There are two categories of the legal defense of mistake: mistake of law and mistake of fact. A mistake of law occurs when the individual who committed the crime did not understand or was not aware that the crime they committed was actually against the law.

One common example of a mistake of law includes driving over a specific speed in their care while unknowingly breaking the speed limit. However, a mistake of law is difficult to prove, so it is not typically used as a defense to breaking and entering.

A mistake of fact occurs when an individual commits a crime and does not understand an element of the crime, and that mistake is reasonable. An example of this is when an individual takes a piece of personal property that they believe is their own, but it really belongs to another individual.

What defenses will be available for a defendant will vary depending on the unique facts and circumstances of each case.

Should I Contact a Lawyer Regarding My Breaking and Entering Charge?

If you have been charged with breaking and entering in California, it is essential to consult with a California criminal lawyer. Your lawyer will be able to determine if any defenses will be available in your case.

Your attorney will represent you throughout the criminal case process, answer all of your legal questions, and protect your interests throughout the process. In addition, your attorney will be informed of any updates or changes in the California breaking and entering laws that may affect your case.


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