You have most likely heard the phrase “breaking and entering” used in conversation or on television at some point. The phrase is typically used to refer to forced entry into a structure such as a home or a business. Although the term is commonly used in popular culture, there is actually no law in California called “breaking and entering.” This doesn’t mean that there are no laws against burglary or forced entry, of course, but crimes related to breaking and entering, such as burglary or trespassing, are considered as their own separate charges.
One of the main reasons that breaking and entering isn’t a law is because ‘burglary’ doesn’t necessarily mean that forced entry was involved, and you could therefore be guilty of burglary even if you don’t use any force such as breaking a lock or a window to get inside. For example, if you noticed the door of a home was wide open and you walked in and stole a television set, you would still be guilty of burglary despite walking through the door without any forced entry.
Breaking and entering most often refers to burglary, but may also be related to laws such as trespassing or vandalism. These violations may carry severe penalties, so it is important to seek the help of an experienced criminal defense attorney if you have been charged with a breaking and entering-related crime. A qualified attorney can analyze your case to build a strong defense strategy in order to help get you the best possible outcome.
What is ‘Breaking and Entering’?
Although breaking and entering isn’t its own crime in California, understanding what is meant by “breaking” and “entering” can help to explain the actual laws that it typically refers to, specifically burglary and trespassing.
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“Breaking” refers to gaining entry into a structure with the use of force or fraud. Although “breaking” used to be a requirement of a burglary conviction in California, it was eliminated in the 1800s and you can now be convicted of burglary without breaking into a structure in order to commit theft or another felony.
“Entering” refers to entry into a building or structure with any part of your body or another object, whether or not you enter completely or directly. For example, reaching inside a building with the use of a tool is considered “entering” because the outer boundary of the building has been crossed, even if your body still remains on the outside.
You do not need to enter a house or a building in order to be guilty or breaking and entering. This is a common misconception, as we tend to associate breaking and entering with entry into a home or a business. However, in burglary cases, courts define the term “building” very broadly, allowing for the inclusion of structures such as storage units, loading docks and even phone booths. Auto burglary is unique in that the car must be locked in order for the defendant to be guilty of the crime. However, this is not true of any other building or “premises.”
Some examples of breaking and entering include:
- Walking into your neighbor’s garage in order to steal his lawn mower.
- Breaking a car window in order to steal a wallet that has been left on the dashboard.
- Entering a closed bank in order to rob it.
- Breaking into a storage unit in order to commit theft.
- Using a crowbar to break the window of a storage shed with the intent of committing theft.
Breaking and entering most often refers to burglary, but may also be associated with other offenses. Two of the most common related offenses are trespassing and vandalism. Each of these crimes are explained in more detail below.
Burglary – Penal Code 459
In California, burglary is defined by entering someone else’s property with the intent of committing theft or any type of felony inside. Although using force or fraud to gain entry into someone else’s property with such intent is considered burglary, forced entry is not required in order to be charged with or convicted of burglary. The most important elements that constitute a Penal Code 459 violation are the entering of the premises and the intent to commit theft or a felony once inside.
There are two types of burglary in California:
- First Degree (FD) Burglary
First degree burglary refers to the entering of an inhabited structure in order to commit theft or a felony. There does not need to be anyone inside of the structure during the time that the burglary takes place. First degree burglary is a felony charge that carries severe penalties if convicted.
- Second Degree (SD) Burglary
Second degree burglary refers to the entering of structures or other premises besides residences. These premises could include commercial buildings, vehicles, boats, or animal pens among many others. In California, second degree burglary is a “wobbler” charge, which means that it can it can be prosecuted as either a misdemeanor or a felony.
Trespass – Penal Code 602
According to California’s trespass law, Penal Code 602, it is illegal to enter someone else’s property with the intent to interfere with their property rights. The property rights that are most commonly interfered with in trespassing offenses include:
- “occupying” the property without permission
- damaging the property
- refusing to leave the property
- if the property is a business, interfering with the conducting of business on the premises
As with burglary, breaking is not a necessary component of a trespassing violation, however, forcefully entering another person’s property may be considered trespassing.
Vandalism – Penal Code 594
According to California’s vandalism law, Penal Code 594, it is illegal to damage, destroy, or deface someone else’s property. “Breaking,” or using force in order to gain entry, may constitute vandalism if the property is damaged. For example, breaking a window in order to gain entry can be considered vandalism. A defendant may be charged with vandalism even if he or she does not enter the premises. For instance, if you throw a rock through a window with the intent to enter the premises but are startled and leave without entering, you may not be charged with breaking and entering but could still be charged with vandalism for having broken the window.
Penalty for Breaking and Entering in California
In order to be convicted of burglary in California, the prosecution must prove that the defendant:
- “Entered” a building or premise either partially or completely; AND
- Did so with the intent to commit theft or a felony
It is not necessary for the defendant to have “broken” into the premises nor for the defendant to have successfully completed or fully carried out the theft or felony so long as the intent can be proven.
Burglary may be prosecuted as a misdemeanor or a felony depending on the type of burglary and the details of the case.
First Degree (FD) Burglary
First degree burglary is always a felony in the state of California. Penalties for a first degree burglary conviction are:
- a two, four, or six-year sentence in a state prison; and
- a “strike” on the defendant’s record.
Under California’s Three Strikes Law, if you receive a strike for a felony conviction, such as burglary and you are convicted of a second felony, the prison sentence for the second felony will be doubled. A third strike (a third felony conviction) will result in a life sentence.
Second Degree (SD) Burglary
Second degree burglary is a “wobbler” charge in California, which means that it can be charged as either a felony or a misdemeanor depending on the details of the case including the value of the stolen items.
The maximum penalty for a misdemeanor second degree burglary conviction is:
- one year in county jail; and
- a fine of $1,000
Penalties for a felony second degree burglary conviction are:
- a 16-month, two-year, or three-year sentence in a state prison
It is possible to have a felony second degree burglary charge reduced to a misdemeanor, especially if the total value of the stolen good totals less than $950.
Possible Legal Defenses to Breaking and Entering Charges
An experienced and knowledgeable criminal defense attorney may be able to have your burglary charges reduced or dropped depending on the type of burglary that you have been charged with and the details of your case. Because the two things that the prosecution must prove in order to make a conviction are entry and intent, the most common legal defenses against burglary will try to disprove those factors. Some legal defenses that could be used against a burglary charge include:
- No entry: you are able to prove that you did not enter the premises either fully or partially.
- No intent: you are able to show that you did not have any intent to commit theft or a felony on the premises.
- Mistaken identity: you can provide an alibi or other evidence that proves that you are not the person that entered the premises.
- Insufficient evidence: you can prove that the prosecution’s evidence against you is weak, invalid, or inconsistent.
If you have been charged with breaking and entering or a related crime, you need to have an experienced criminal defense attorney on your side. I have been defending clients facing charges including breaking and entering, trespassing, and vandalism for over 30 years. Call my firm today to schedule a consultation and me and my team will build a defense strategy to help you get the best possible outcome for your case.