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  • -In Penal Code Section 459, California law defines

  • burglary as entering a structure with the intent to

  • commit either a theft or some felony inside.

  • Now a lot of people confuse burglary with robbery and

  • theft, and they're actually three very different concepts.

  • Robbery is when you use violence or threats of

  • violence to take something from somebody's immediate

  • presence, like a mugging or a hold-up.

  • Theft is basically anytime you steal something of value.

  • Whereas burglary, on the other hand, is when you enter a

  • structure--

  • and that could be a house, it could be a business, it could

  • be a factory--

  • but entering a structure or a building with the intent to

  • commit theft or a felony inside.

  • -For example, a burglary, under California Penal Code

  • 459, can be a situation where somebody breaks into a home

  • with the intent to steal clothing items, jewelry,

  • whatever else might be present.

  • Another example of burglary can be going into a bank to

  • cash a check that you know is bad.

  • A different example of burglary can be a situation

  • where a person goes to a child-care facility with the

  • intent to commit assault on a child.

  • Now that isn't theft, but you are going there with the

  • intent to commit a felony, and therefore, it is burglary.

  • -Under California Penal Code 459, merely entering a

  • structure with the intent to commit a theft, or any felony,

  • once you're inside constitutes a burglary.

  • So really, entry is the crux of the crime here.

  • For example, say you enter your neighbor's home with the

  • intent to steal his computer.

  • And when you're inside his home, you realize that you

  • can't find the computer and it's not there.

  • That still constitutes the burglary, because you entered

  • the home to commit a theft of his computer

  • once you were inside.

  • So it doesn't even matter that you didn't actually

  • complete the crime.

  • Thus, entry is really the most important

  • element of a burglary.

  • -There's also a lot of confusion between burglary and

  • the idea of breaking and entering.

  • The fact is that in California law, breaking and entering is

  • not an element of burglary.

  • What that means, essentially, is that you could be convicted

  • of burglary even if there was no forced entry.

  • And to give you an example, suppose I'm walking down the

  • street, and I look inside a house.

  • And the front door is wide open, and inside the door is a

  • bicycle that I want to steal.

  • So I walk through that open front door, take the

  • bicycle, and leave.

  • Now in that situation, there was no forced entry.

  • I didn't even have to open the door.

  • I mean, even though the door was wide open, the mere fact

  • that I entered the house or the structure with the intent

  • to commit a theft inside is enough to make it a burglary.

  • -Under California Penal Code 459, first degree residential

  • burglary is treated much more seriously

  • than commercial burglary.

  • We treat our homes as our castle, and therefore,

  • residential burglary has more harsh penalties.

  • It's always a felony.

  • It is always a strike.

  • A person can face up to six years' incarceration as well

  • as a $10,000 fine for this charge.

  • A person will be liable for entry into any residence.

  • It doesn't have to be a house in the traditional sense.

  • It could be a hotel where a person is staying.

  • Here in California, there was even a case where a person was

  • liable for residential burglary for breaking into a

  • tent where a homeless person was living.

  • It was a structure.

  • It had four sides.

  • It had a roof.

  • A person was living in there.

  • That makes it residential burglary.

  • -By contrast, California Penal Code 459 treats second degree

  • burglary, otherwise known as commercial burglary, a little

  • less severely.

  • Commercial burglary is where you enter a business, or a

  • factory, or someplace where you know no one resides.

  • Here in California, commercial burglary is what's called a

  • "wobbler," which means the prosecutor can choose to file

  • it as either a felony or a misdemeanor, depending on the

  • circumstances of the case.

  • If you're convicted of felony commercial burglary in

  • California, you face up to three years in state prison.

  • However, if you're convicted of a misdemeanor commercial

  • burglary, you only face up to one year in county jail.

  • -Burglary is one of those crimes that can be

  • surprisingly difficult for the prosecutor to prove in court.

  • And in fact, lots of innocent people get wrongfully accused

  • of burglary, and sometimes,

  • tragically, wrongfully convicted.

  • The good news is that here at Shouse Law Group, we've had a

  • great record of success over the years in fighting burglary

  • charges and helping our clients to get those charges

  • reduced or even dismissed.

  • -One common defense to burglary is what we call

  • "after-acquired intent." What that means is that you did not

  • have any intent to commit a theft, you did not have any

  • intent to commit a felony, until after you were already

  • inside the structure.

  • For example, you walk into Bloomingdale's.

  • You're just going to do some shopping.

  • But you find this outfit, and you fall in love with this

  • outfit, but you can't afford that outfit.

  • And for some reason, spontaneously, you

  • decide to steal it.

  • So you walk out of the store with that

  • outfit and without paying.

  • Sure you're likely liable for a theft, but

  • that is not a burglary.

  • And it is not a burglary because when you walked into

  • the store, you did not yet have any intent to steal.

  • -Another common defense in a burglary case is

  • misidentification.

  • Mistaken eyewitness ID is the number-one reason for wrongful

  • arrests and convictions across the United States.

  • And it certainly results in a lot of innocent people getting

  • arrested for burglary.

  • It's very common that a burglary occurs in the

  • vicinity, and you just happen to match the description that

  • an eyewitness gives to the police, and you're arrested.

  • Now it's a defense attorney's job to show the prosecutor,

  • the court, and even possibly a jury that this is a case of

  • mistaken identification and that you were not actually the

  • perpetrator of this crime.

  • -Another common defense to a burglary charge in California

  • is what we call being merely present.

  • What that means is you may be hanging out with some people

  • who decide to commit a burglary

  • of a home or a business.

  • But it wasn't your idea, and you don't really participate.

  • You were simply in the wrong place at the wrong time with

  • the wrong company.

  • And if that's the situation, you should not be held liable

  • for burglary.

  • Because ultimately, the prosecutor has to prove not

  • only that you were present, but that you were in on it.

-In Penal Code Section 459, California law defines

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刑法459条 -- 強盗 (Penal Code 459 -- Burglary)

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    Amy.Lin に公開 2021 年 01 月 14 日
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