First Degree Burglary vs Second Degree Burglary

If you were wondering what the difference is between first-degree burglary and second-degree burglary, you’ve come to the right spot as we will discuss the differences between the two types of burglary in much detail below. Generally, burglary involves a person breaking and entering into a building or structure with the intent to commit a felony within such a structure.

A structure is defined as a residence, commercial building, hotel room, or storage unit. So, what makes 1st-degree burglary different from 2nd-degree burglary? We will discuss this below.

Whether you’ve been charged with first-degree burglary or second-degree burglary, you should promptly contact an experienced burglary defense attorney at The H Law Group to defend you and keep you from going to jail. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.

What is the Difference Between First Degree and Second-Degree Burglary?

The difference between first-degree burglary and second-degree burglary has to do with the type of structure that the defendant has entered into. If the structure the defendant has entered is a residence, burglary is always charged as first-degree burglary. However, if the defendant enters into any other structure, burglary is charged as second-degree burglary.

Also, first-degree burglary is always charged as a felony, whereas second-degree burglary is a wobbler, meaning the prosecution has the discretion to charge it as either a misdemeanor or a felony.

When it comes to the length of the prison sentence. First-degree burglary carries a prison sentence of up to six years in California State Prison. Whereas, second-degree burglary carries a prison sentence of up three years in California State Prison.

So, what determines whether an individual would be charged with felony second-degree burglary or first-degree burglary? The prosecution typically looks at the defendant’s criminal record. If the defendant has been charged with other violent crimes or has a previous conviction for burglary, the prosecution may bring felony second-degree burglary charges.

Also, the prosecution looks at what crime you committed after you entered the structure or what crime you intended to commit while in the structure.

The third and final factor that the prosecution will weigh is the quality of evidence that it has against you. If the prosecution has a very strong case, it might charge you with felony second-degree burglary. Whereas, if the evidence is weak or lacking, it might charge you with misdemeanor second-degree burglary.

The biggest factor that will weigh in one whether you’re convicted of burglary is the competence and skill of your burglary attorney. So, if you have been charged with burglary, hire an experienced criminal defense attorney to defend you and fight for you in court. Our attorneys have defended countless persons, so they have the knowledge and skill to achieve the best possible outcome for you.

Quick Note: Among attorneys, first-degree burglary is commonly known as residential burglary, while second-degree burglary is commonly known as a commercial burglary because it usually involves a structure that is not a residence, which leaves commercial structures.

Defenses for Second Degree Burglary vs First Degree Burglary

The defenses for second-degree burglary and first-degree burglary are very similar. If you have been charged with either type of burglary, there are a number of defenses that your attorney can make to defend you and keep you from going to prison. Here are some of the defenses that may be available to you.

  • You did not enter a residence or structure to commit a felony within it
  • You were intoxicated at the time you entered into the residence or structure so you were unable to form the intent required for the prosecution to convict of you of burglary
  • You had the residence or structure owner’s consent to enter
  • The police arrested you and collected evidence against in violation of your right to be free from unlawful searches and seizures

What is the Crime of Burglary Under California Penal Code Section 459 PC?

To convict a person of burglary in violation of Penal Code 459 PC, the prosecution must prove a number of elements beyond a reasonable doubt. If the prosecution fails to prove even one element, it will not be able to convict the defendant of burglary. The following elements apply to first-degree burglary, as well as second-degree burglary:

  • The defendant entered into a residence, building, or structure
  • The defendant entered intending to commit a felony or grand theft within the building
  • Grand theft is defined as the theft of money or property that has a value that exceeds $950

Note: For the prosecution to convict the defendant of either first-degree burglary vs second-degree burglary, it need not show that the defendant committed the crime with the residence or building. Rather, the prosecution only needs to show that the defendant entered into the building intending to commit a crime therein.

Examples of First-Degree Burglary vs Second-Degree Burglary

Jim knows that his neighbor is going on vacation, and he knows that his neighbor’s wife has a jewelry set that’s worth thousands of dollars. So, he decides that he wants to go in and steal the jewelry. One day, he takes his crowbar and breaks in. As soon as he enters, he trips the home’s alarm system and flees. The police arrest him two blocks from the home. Here, Jim can be charged with and convicted of first-degree burglary he entered the residence of another person with the intent to commit grand theft therein.

Tom needs cash right away. So, he decides to break into a bike store and steal an expensive bike that’s worth thousands of dollars. Tom breaks in, steals the bike, and is later apprehended. Tom can be charged with and convicted of second-degree burglary because he entered into a commercial building with the intent to commit grand theft within the building.

Frequently Asked Questions We Get a The H Law Group

1) Which is worse first or second-degree burglary?

First-degree burglary is more serious than second-degree burglary. If convicted of first-degree burglary, a strike will be added to a person’s criminal record. This means that the defendant will have to complete at least 80% of his jail term. If the defendant commits additional crimes in the future, he faces enhanced sentencing.

2) How long is jail time for 2nd-degree burglary?

Second-degree burglary can be charged as either a misdemeanor or a felony. If charged as a misdemeanor, a person faces up to 12 months in county jail. However, if it’s charged as a felony, a person faces up to three years in county jail.

3) What does burglary in the first degree mean?

Burglary in the first degree refers to all residential burglaries. For example, if a person enters another person’s home to commit grand theft or rape a person inside, the defendant will be charged with first-degree residential burglary. However, if a person enters into a business or commercial structure, this is second-degree burglary. First-degree burglary is the most serious form of burglary.

4) What does burglary in the second degree mean?

Burglary in the second degree is a term that’s used to refer to all other burglaries that are not residential burglaries. For example, if the defendant enters into a business to commit a felony or grand theft within, the defendant will be charged with second-degree burglary.

Contact an Experienced Burglary Defense Attorney

If you or a loved one has been charged with burglary or is being investigated for it, you should promptly contact an experienced Los Angeles Burglary Defense Attorney to represent you and mitigate the potential consequences that you face. Whether you’ve been charged with 1st-degree burglary vs 2nd-degree burglary, you should contact an attorney because a conviction of either offense carries a harsh jail sentence, so don’t wait and schedule a consultation with one of our experienced burglary defense attorneys at The H Law Group. Schedule your consultation by filling out the contact form below or by calling us at 1 (213) 370-0404.

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Act now to protect your legal rights.