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459-460(a) PC F Burglary; first degree 10851(a) VC F Unlawful taking of vehicle How much time can be given for these?

San Juan Capistrano, CA |
Attorney answers 3


The punishment in California for a burglary in the first degree is found in Penal Code section 461(a). That section states, "Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years." Of course, if probation is granted by the court, the punishment as a term of probation can be up to 365 days in the county jail.

In California a first offense unlawful taking of a vehicle, a violation of Vehicle Code section 10851(a), is a wobbler (can be charged as either felony or misdemeanor at the discretion of the District Attorney). The punishment is imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. The "state prison" reference means a commitment of 16 months, 2 years, or three years. The penalty may go up if the unlawful taking involves special vehicles or the person convicted has certain prior convictions.


First degree burglary means residential burglary. It is a felony with a sentence of two, four or six years in state prison. It is also "prison presumptive," which means a judge must sentence the defendant to prison unless there are unusual circumstances that would justify probation.

Finally, residential burglary is a "strike" under the Three Strikes law and can increase the punishment for any future felony.

Vehicle Code 10851 is a "wobbler" that can be charged as a misdemeanor with a maximum of a year in jail, or a felony with a potential prison sentence of three years.

Due to the way felony sentencing in California works, the maximum sentence on a conviction for both of these offenses is six years, eight months.


Burglary in the 1st degree is 2, 4 or 6 years in state prison; car theft is a wobbler that can get you up to 1 year in CJ if charged as a misdemeanor or up to 3 years in state prison if charged as a felony. It is not possible to say how much time you would actually get as that depends on facts and circumstances not given here. In addition under CA's sentencing law the judge chooses a principal term with enhancements plus 1/3 the subordinate term. Whether the judge chooses 2, 4 or 6 years as a principle term is within his discretion. A likely outcome might be 6 years principle term plus 1/3 of the middle term on the car theft resultin in a sentence of 6 years 8 months.

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