Defending against a burglary charge involves systematically challenging the prosecution's ability to prove two key elements beyond a reasonable doubt: that you entered a structure, and that you did so with the intent to commit a theft or a felony inside.
The prosecution will use evidence like fingerprints, surveillance footage, witness testimony, and your own statements to build their case. A conviction carries serious consequences, including potential prison time, fines, and a permanent criminal record that affects future employment and housing.
However, a charge is merely an accusation. Many defenses are available, from demonstrating you had consent to be on the property to proving a case of mistaken identity or showing that crucial evidence against you was obtained illegally.
If you have a question about a burglary charge, our team is available 24/7 to listen. Call us at (213) 212-5002 for a consultation. Our lead attorney is fluent in Spanish, French, and Italian, and we have lawyers who also speak Hebrew and Portuguese.
Key Takeaways for Defending Against a Burglary Charge
- Intent is the central element of a burglary charge. The prosecution must prove you entered a structure intending to commit a felony or theft, and this is frequently the weakest point in their case.
- The type of structure determines the severity of the charge. Entering a residence is first-degree burglary and a “strike” under the Three Strikes law, leading to much harsher penalties than second-degree (commercial) burglary.
- Evidence obtained illegally cannot be used against you. If police conducted a search without a warrant or probable cause, a criminal defense attorney files a motion to suppress that evidence, which frequently results in a case dismissal.
What Does a Burglary Charge Actually Mean in California?
The term "burglary" commonly brings to mind images of a masked figure breaking into a home at night. While that scenario qualifies as burglary, the legal definition in California is much broader and more technical.
What Is the Legal Definition of Burglary?
In simple terms, California Penal Code 459 defines burglary as entering a building, a room within a building, or even a locked vehicle with the intent to commit a theft or any felony once inside.
Think of it like a two-part test the prosecution must pass. They have to prove both the entry and the intent. If they fail on either part, their case falls apart. The crime is considered complete the moment the entry is made with the required intent, even if the intended theft or felony never actually happens.
First-Degree vs. Second-Degree Burglary: Why Does the Distinction Matter?
California law separates burglary into two categories, and the difference between them dramatically impacts the potential penalties.
- First-Degree (Residential Burglary): This involves entering an inhabited dwelling. An "inhabited" dwelling is simply a place where someone lives; they do not need to be home at the time of the entry. First-degree burglary is always a felony and is considered a "strike" under California's Three Strikes law, which leads to much harsher sentences for future felony convictions.
- Second-Degree (Commercial Burglary): This is the burglary of any other type of structure, such as a business, store, or office. Second-degree burglary is a "wobbler," which means the prosecutor has the discretion to charge it as either a felony or a misdemeanor, depending on the details of the case and your criminal history.
The classification of the charge is a pivotal point in any case. One of the first things we do is analyze the specifics of the charge to understand the legal battleground and potential consequences.
What Does "Entry" Mean? Is It Just Breaking Down a Door?
The legal definition of "entry" is surprisingly broad. The law does not require a forcible "breaking and entering." Pushing open an unlocked door, reaching a hand through an open window, or even placing a tool across the threshold of a structure is legally considered an entry.
This is a low bar for the prosecution to clear. However, the ambiguity of what constitutes an entry also creates opportunities for a defense, particularly if the entry was accidental or not done with criminal intent.
Deconstructing the Prosecution's Case: Core Defense Strategies
Strategies for Defending Against Burglary Charges
In a criminal case, the prosecution carries the entire burden of proof. They must convince a jury of your guilt, and our role is to find and expose the weaknesses in their arguments. A charge is not a conviction, and many cases have flaws to challenge. These are some of the most effective strategies for defending against burglary charges.
Strategy 1: Did You Actually Have the “Intent to Commit a Crime”?
Intent is a state of mind, which makes it one of the most difficult elements for a prosecutor to prove directly. They must almost always rely on circumstantial evidence to suggest what you were thinking when you entered the structure.
This is where a strong defense is mounted. For example, perhaps you entered a building for a reason that was not criminal. You might have been seeking shelter from a sudden storm, you were intoxicated and mistook the residence for your own, or you were trying to retrieve property you genuinely believed was yours. Presenting a plausible, alternative reason for your presence negates the element of criminal intent.
Strategy 2: Was Your Entry Actually Unlawful?
The prosecution must prove you had no right to be on the property. If you had permission to be there, it is not burglary. This is challenged in a couple of key ways.
- The Defense of Consent: If you demonstrate that you had permission from an owner or a resident to enter the property, the burglary charge is not sustained. This consent might have been given directly, such as someone saying, "You can come in," or it could be implied based on a past relationship or previous behavior.
- Claim of Right: This defense applies if you entered a structure with the honest and reasonable belief that you were retrieving your own property. Even if that belief was mistaken, a genuine belief negates the intent to commit theft, which is a cornerstone of most burglary charges.
Strategy 3: Is Their Evidence Reliable?
Modern investigations rely heavily on forensic and eyewitness evidence, but this evidence is fallible. Every piece of evidence is scrutinized.
- Mistaken Identity: Eyewitness testimony is known to be fallible. A witness's memory is affected by poor lighting, stress, or suggestive police procedures like a poorly constructed lineup. We carefully investigate the circumstances of any eyewitness identification to determine if it is reliable.
- Challenging Forensic Evidence: Evidence like fingerprints or DNA seems definitive. However, the collection, storage, and analysis of this evidence must follow strict protocols. We investigate the chain of custody to look for any signs of contamination or mishandling that render the evidence unreliable.
- Illegal Search and Seizure: The Fourth Amendment of the U.S. Constitution protects you from unreasonable searches and seizures by the government. If the police found evidence against you by searching your home, car, or person without a valid warrant or probable cause, that evidence may have been obtained illegally. We file a motion to suppress that evidence. If the motion is successful, the prosecution is barred from using it against you, which frequently leads to a dismissal of the case.
How We Build Your Defense From the Ground Up
A strong defense is rarely the result of a single "gotcha" moment in a courtroom. Instead, it is built through a methodical process of investigation, analysis, and preparation long before a trial begins.
What Is Our First Step?
The process begins with a conversation. We sit down with you and listen to your side of the story, without judgment. Every detail, no matter how small it may seem, is important. Immediately after, we obtain and review the police report and all the initial evidence the prosecution has gathered to understand the case they intend to prove against you.
How Do We Find the Weaknesses In Their Case?
- Independent Investigation: We do not take the police report at face value. Our team may send investigators to the scene to look for evidence the police overlooked. We re-interview witnesses to check for inconsistencies in their stories and search for additional evidence, such as surveillance footage from a neighboring property that supports your case.
- Subpoenas and Discovery: Through the formal legal process of discovery, we demand that the prosecution turn over all the evidence they have collected. This includes officer bodycam footage, dispatch logs, forensic lab notes, and any information that might point to your innocence, which is known as exculpatory evidence.
- Examining Every Procedure: We analyze every action taken by law enforcement. Did they have a legal right to stop you in the first place? Were you read your Miranda rights before being questioned? Procedural mistakes are powerful leverage in negotiations and sometimes lead to evidence being suppressed or the case being dismissed entirely.
What Is the Goal of This Process?
The ultimate goal is to create doubt. The American legal system is built on the principle that the prosecution must prove guilt beyond a reasonable doubt. Our job is to introduce enough reasonable doubt—whether through conflicting evidence, unreliable witnesses, or police misconduct—that a jury does not return a guilty verdict.
This deep level of preparation also serves another purpose. It places us in the strongest possible position to negotiate with the prosecutor. When they see that we have a well-prepared and compelling defense, they are typically more willing to consider reducing the charges or even dismissing the case to avoid a trial.
Understanding the Stakes: Potential Penalties for a Burglary Conviction
A burglary conviction carries severe consequences. Knowing what is at stake clarifies what we are fighting to protect: your freedom and your future.
Felony (First-Degree) Burglary Penalties:
- State Prison: A conviction results in a sentence of two, four, or six years in a California state prison.
- A "Strike": A first-degree burglary conviction is a "strike" under California's Three Strikes law. This means that any future felony convictions will result in significantly more severe penalties.
- Fines and Restitution: You may face fines of up to $10,000, in addition to being ordered to pay restitution to the victim for any property that was damaged or lost.
Second-Degree Burglary Penalties (as a felony):
- Jail Time: A felony conviction leads to 16 months, two, or three years in county jail.
- Fines: You may be ordered to pay fines of up to $10,000.
Second-Degree Burglary Penalties (as a misdemeanor):
- Jail Time: A misdemeanor conviction carries a sentence of up to one year in county jail.
- Fines: The maximum fine is typically $1,000.
Beyond Jail and Fines: The Hidden Consequences
A felony conviction creates a lifetime of obstacles long after you have served your time. It impacts your ability to find a job, rent an apartment, obtain a professional license, or even own a firearm. This is why we fight not just to keep you out of jail, but to protect your future opportunities with the help of an experienced California felony defense lawyer
Frequently Asked Questions About Burglary Charges
What if I didn't "break" in, but just walked through an open door?
Under California law, a forcible "breaking" is not a required element of burglary. Simply walking into a structure without permission, as long as you have the intent to steal or commit a felony inside, is sufficient to be charged with burglary.
I was just with a friend who committed burglary. Can I still be charged?
Yes, this is a very common scenario. Under a legal principle known as accomplice liability, you are found just as guilty as the person who physically committed the act. If you aided, abetted, or encouraged the crime in any way—for instance, by acting as a lookout or driving the getaway car—you will be charged and convicted of burglary.
What's the difference between burglary and robbery?
Burglary and robbery are commonly confused, but they are distinct crimes. Burglary is a property crime that involves entering a structure with criminal intent. Robbery, on the other hand, is a violent crime that involves taking property directly from another person's possession through the use of force or fear. Robbery carries significantly harsher penalties than burglary.
The police want to talk to me. What should I do?
You have the right to remain silent. You should politely but firmly decline to answer any questions or make any statements without a lawyer present. Anything you say will be used against you by the prosecution, even if you believe you are simply explaining your innocence.
Can I be convicted if nothing was actually stolen?
Yes. The crime of burglary is legally complete the moment you enter a structure with the required intent. The prosecution does not need to prove that a theft or other felony was actually carried out, only that you intended to commit one when you entered. Which falls under theft crime charges.
We Fight to Protect Your Future
Our team at Chudnovsky Law serves clients across California, and we have deep experience handling the challenges you are up against.
The first step toward building your defense is a simple conversation. We are here 24/7 to listen to your situation and explain how we help.
When you are ready to take the next step, call us at (213) 212-5002.