Written by attorney Geoff Alan Dulebohn

Problems in California Second Degree Burglary Cases

California Penal Code section 460 delineates the two degrees of burglary. A second degree burglary allegation usually applies to "commercial burglary" in which the building entered is not an "inhabited dwelling", i.e. a residence, house, etc. Both degrees of burglary [generally speaking] require 1. entry, 2. of a building, 3. with intent to commit a theft or any felony. All of these elements must be proven to obtain a conviction. An interesting problem that I encountered dealt with the second element: what is a "building"? Although Penal code section 459 specifies other types of rooms or structures that are legally considered a building, the case law applies a liberal interpetation of the word when the structure is not specified in the statute. Generally, a building must have four walls and a roof. My client was accused of a second degree burglary and other charges relating to a theft. Entry and intent appeared to exist, but on closer inspection, the structure in question did not legally qualifty as a "building". It was a large barn-like structure with only three walls and a roof. Accordingly, the "building" element of burglary should not be overlooked as a potential argument when accused of any burglary. Another problem that can arise develops in shoplifting situations where intent can be proven at the time of entry. Intent can be proven if the accused admits that he/she decided to steal the merchandise before entering the store. Circumstantial evidence of intent may exist as well, such as wirecutters found in a pocket in a situation in which theft of clothing is suspected. If the wirecutters were carried into the store by the accused, their existance can be used to argue that the intent developed before entry to remove security devices and tags. Therefore, what would otherwise be a simple petty theft morphs into a burglary allegation because intent can be proven (or at least argued) to exist at the time of entry.

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