What Is Burglary of Habitation

What is burglary of habitation

So, you have been arrested or investigated for burglary of a habitation. Not a pleasant experience, is it? It's time to begin protecting your future. A good start would be to know what the burglary of habitation is, so let's start there.

Burglary of a habitation is an unlawful entry into a residential or commercial building with the intent to commit a felony theft inside. If you ever doubt the legality of your activity, you should verify it with an experienced criminal defense attorney to advise you on the proper course to take.

How Does Burglary of Habitation and Traditional Burglary Differ?

How does burglary of habitation and traditional burglary differ

While the word "burglary of habitation" is rarely used in other states in the U.S., "burglary of habitation" is simplified by charges of "burglary" or "theft." Depending on what occurred once a location was burglarized or unlawfully entered.

Understanding California Burglary Laws | Penal Code 459 PC

Under Section 459 of the California Penal Code, burglary is entering a structure (residential, commercial, or other) with the intent to commit:

  • Grand theft;
  • Petty theft; or
  • Any other felony.

It is essential to remember that entry into a structure does not require the use of force, the threat of violence, or any act of destruction. It only requires the intent to conduct a criminal or any offense that can be charged as a felony. Under California Law, burglary is considered a wobbler. Depending on the circumstances, the punishment can be either a felony or a misdemeanor.

First-degree Felony Theft or Burglary

First-degree burglary is typically a residential burglary because it includes accessing an "occupied" dwelling designed for human habitation. Even if the residence is unoccupied, it will be classified as "inhabited" if it is intended for residential use.

The defendant may be sentenced to two, four, or six years in state prison if convicted of this offense. Those convicted of first-degree burglary will not receive probation unless it is in the best interest of justice. In other words, if a person commits an offense and gets convicted of first-degree burglary, they will be sentenced to prison. It will be followed by parole unless mitigating circumstances warrant a less severe sentence of up to one year in county jail, followed by formal felony probation.

California's Three Strikes Law applies to first-degree burglary. Under California Law, a person convicted of two felony strike charges and any subsequent felony crime faces a possible prison sentence of 25 years to life in prison.

Second-degree Felony Theft or Burglary

Second-degree burglary encompasses all other types of burglary, including commercial burglary and burglary of any structure other than a residence or a habitation. Second-degree burglary can be a misdemeanor or a felony. If charged as a misdemeanor, the sentence might be up to one year in county jail. A second-degree burglary, if charged as a state jail felony, is punishable by up to 16 months, two years, or three years in prison.

Differentiating Burglary From Other Theft Crimes

Differentiating burglary from other theft crimes

Knowing the differences between burglary and other theft crimes is essential because their distinctions can significantly impact how you approach your case. Take a look at how burglary differs from other theft crimes.

Burglary of Habitation vs. Breaking and Entering

Burglary is the illegal entry into practically any building to commit a crime. However, there is no actual breaking necessary. Criminal trespass through an open door may still result in prosecution.

Compared to burglary, crimes of breaking and entering are typically less serious. If found guilty of these crimes, the offender could spend up to 20 years in a matching state prison and pay fines and other costs after their sentence.

The prosecution must establish specific conditions throughout the case to establish beyond a reasonable doubt that the defendant committed the alleged crime. Hiring an experienced criminal defense attorney to help develop a strong defense is essential when dealing with these problems. It entails hiring legal counsel as soon as possible.

Second-Degree Burglary vs. Shoplifting

According to Penal Code 459.5, shoplifting is:

  • Entering a place of business while that firm operates during regular business hours; or
  • To steal something worth $950 or less.

In other words, shoplifting is a type of burglary in which the defendant enters a business that is open with the intent to steal goods valued at $950 or less.

The voter initiative Proposition 47, which lessened the penalty for various minor offenses in California, created the crime of shoplifting. Before Proposition 47 in 2014, shoplifters may have faced second-degree burglary under Penal Code 459 PC, which carries felony penalties.

Offenders charged with violating PC 459.5 for shoplifting only face misdemeanor penalties unless one of the following is true:

  • The defendant was previously convicted of one of several heinous offenses, including rape, murder, or sexual assault of a child; or
  • Due to a prior conviction for a sex offense, the defendant is forced to register as a sex offender.

If one of these statements is accurate, a defendant who commits shoplifting may be subject to the same criminal punishments as a person who conducts second-degree burglary under PC 459 if found guilty.

Legal Penalties for Burglary

Legal penalties for burglary

If convicted of burglary under California Penal Code Section 459, you could be subject to the following penalties:

First-degree Burglary

In California, first-degree burglary is always a felony. The potential consequences include a two, four, or six-year state jail sentence.

Second-degree Burglary

First-degree burglary bears harsher penalties than second-degree burglary.

The offense of second-degree burglary is known as a "wobbler." A "wobbler" is a crime in California that, at the prosecutor's option, can be charged as a felony or misdemeanor.

The potential implications of a conviction for burglary in the second degree are as follows:

  • Felony probation;
  • 16 months, two years, or three years served in county imprisonment; or
  • Up to ten thousand dollars ($10,000) in fines.

A conviction for second-degree misdemeanor burglary includes the following potential penalties:

  • Misdemeanor (summary) probation;
  • Up to one (1) year in the county jail; or
  • Potential fines of up to $1,000.

Common Legal Defenses Against Burglary Crimes

Burglary is a serious crime, and those who face it may have to endure a lengthy legal process. That's why it's essential to get legal defense quickly after the charges have been filed against you.

Common legal defenses against burglary help you avoid the harshest penalties. The following are some examples of these defenses in action:

Lack of Intent To Commit Theft

Lack of intent to commit theft

A prosecutor must prove intent that you conducted theft or another criminal when you enter a site. If you did not enter the premises intending to conduct a crime, you could not be held guilty of this felony. For example, if you were drugged before entering the premises and decided to take something inside, your criminal attorney may be able to utilize this to your advantage. Voluntary intoxication is not usually a valid defense for lack of intent.

Rights To Reclaim Personal Items

A person accused of stealing property may have a legitimate defense if they can demonstrate that they had good faith that the property was theirs or that they had a valid claim to it.



If any number of people could fit the description of the alleged offender, the lawyer might be able to claim that this is just a case of mistaken identity. It is a powerful defense if you have a witness who can put you somewhere else at the time of the claimed incident.

Lack of Feasible Evidence

A prosecutor may dismiss a criminal charge if the evidence against the defendant is insufficient. Maybe fresh evidence is discovered that weakens the prosecution's case against the defendant. Your attorney may be able to negotiate with the prosecutors when they are first evaluating the police reports and argue that there is insufficient evidence to pursue a formal charge against you.

Police Misconduct

Police misconduct

An unlawful arrest or neglect to assert your Miranda Rights may render the entire process illegal. Likewise, evidence obtained by an unlawful search and seizure may be contested and ruled inadmissible in court.

Speak With Our Criminal Lawyer About Your Case Today

Speak with our criminal lawyer about your case today

A criminal conviction for burglary can ruin your life. It can even cost you and your freedom if a judge sentences you to prison.

It will be best if you speak with our criminal lawyer immediately. As a team who handled hundreds of burglary offenses, take advantage of over a decade of experience by hiring our firm to represent your case.

Hurwitz Law Group will work tirelessly for you and can help you get your case dismissed or the charges reduced. We'll give you the personal attention that's required to be successful when it comes to dealing with this type of offense.

You are not alone. Call us today at (323) 747-1121 and get your free, confidential consultation!

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