Arrested or Charged with Second-Degree Burglary (Penal Code § 460(b)) in California?

If you’ve been arrested for second-degree burglary under California Penal Code § 460(b), you’re facing serious charges that could significantly impact your future. A conviction can result in substantial jail time, hefty fines, and a criminal record that follows you for life, affecting everything from employment opportunities to housing options.

Before making any statements to law enforcement or decisions about your case, it’s critical to understand exactly what you’re up against, the potential penalties, and what legal defenses may be available to you.

What is Second-Degree Burglary Under PC § 460(b)?

In California, burglary is divided into first-degree (residential) and second-degree (all other burglaries). Second-degree burglary under Penal Code § 460(b) occurs when someone enters a commercial building, store, warehouse, or other structure that isn’t a dwelling with the intent to commit theft or any felony inside.

The key elements prosecutors must prove beyond a reasonable doubt to convict you of second-degree burglary are:

1. You entered a building, store, or other structure that isn’t a residential dwelling
2. When you entered, you had the specific intent to commit theft or a felony once inside

What makes California burglary laws unique is that the crime is complete the moment you enter with the criminal intent—you don’t actually need to complete the theft or felony you intended to commit. Simply entering with that intent is enough.

Moreover, “entering” doesn’t require breaking in or causing damage. Walking through an open door, climbing through an open window, or even reaching your arm through an opening constitutes “entry” under the law.

Common Examples of Second-Degree Burglary

Some common scenarios that may lead to second-degree burglary charges include:

• Entering a store during business hours with the intent to shoplift merchandise
• Breaking into a closed business to steal cash or valuable equipment
• Entering an office building to take computers or other electronics
• Going into a storage facility to steal items from storage units
• Entering a vehicle with the intent to steal parts (often charged as auto burglary)
• Using fraudulent means to enter a bank to cash counterfeit checks

Penalties for Second-Degree Burglary in California

Second-degree burglary in California is a “wobbler” offense, meaning it can be charged as either a misdemeanor or a felony depending on:

• The circumstances of the crime
• The value of property involved
• Your prior criminal history
• Whether anyone was present or harmed

Misdemeanor Second-Degree Burglary Penalties

If charged as a misdemeanor, the potential penalties include:

• Up to 1 year in county jail
• A fine of up to $1,000
• Misdemeanor (summary) probation
• Restitution to the victim
• Community service

Felony Second-Degree Burglary Penalties

If charged as a felony, you could face:

• 16 months, 2 years, or 3 years in county jail under California’s realignment program
• A fine of up to $10,000
• Formal probation
• Restitution to the victim
• Community service

Enhanced Penalties for Aggravating Factors

Certain factors can lead to enhanced penalties for second-degree burglary:

• If the building had people present at the time (creating risk of confrontation)
• If you were armed with a weapon
• If you have prior burglary or theft convictions
• If the burglary involved a high monetary value of stolen goods
• If you committed the burglary as part of organized retail theft

Additionally, second-degree burglary can count as a strike under California’s Three Strikes Law if it’s charged as a felony and involves entry into certain types of buildings, such as banks or pharmacies.

Second-Degree Burglary vs. Other Related Crimes

Second-degree burglary is often confused with other theft-related crimes, but there are important distinctions:

Second-Degree Burglary vs. First-Degree Burglary

• First-degree burglary (PC § 460(a)): Involves entering an inhabited dwelling with intent to commit theft or a felony. Always a felony and a strike offense.
• Second-degree burglary (PC § 460(b)): Involves entering any other structure with intent to commit theft or a felony. Can be charged as either a misdemeanor or felony.

Second-Degree Burglary vs. Shoplifting

• Shoplifting (PC § 459.5): Entering an open business during regular business hours with intent to steal property worth $950 or less. Always a misdemeanor for first-time offenders.
• Second-degree burglary: Can involve any amount of property and can be charged as a felony.

Second-Degree Burglary vs. Trespass

• Trespass (PC § 602): Simply entering or remaining on property without permission, with no intent to commit a crime.
• Second-degree burglary: Requires intent to commit theft or a felony upon entry.

Legal Defenses to Second-Degree Burglary Charges

With potential jail time and significant fines at stake, developing a strong legal defense is crucial. Depending on the circumstances of your case, these defenses may apply:

Lack of Intent

One of the strongest defenses is demonstrating you didn’t have the specific intent to commit theft or a felony when you entered the structure. If you entered for a legitimate reason and only later decided to commit a crime, it’s not burglary (though it might be another crime).

Mistaken Identity

Security camera footage in commercial burglaries is often grainy or incomplete. If you’ve been wrongfully identified as the perpetrator, your attorney can challenge the identification evidence and present alibi evidence showing you were elsewhere.

Owner’s Consent

If you had permission to enter the property, you cannot be guilty of burglary, even if the owner later claims you didn’t. This defense works best when there’s evidence of consent, such as text messages or witness statements.

Insufficient Evidence

The prosecution must prove every element of the crime beyond a reasonable doubt. Your attorney can challenge whether there’s sufficient evidence to prove you actually entered the structure or had the required intent at the time of entry.

Illegal Search and Seizure

If police obtained evidence against you through an illegal search or without a proper warrant, your attorney can file a motion to suppress that evidence. If key evidence is thrown out, the prosecution may be unable to proceed with the case.

Duress or Necessity

In rare cases, if you were forced to commit the burglary under threat of harm or entered a building due to an emergency situation, these may provide legal defenses.

The Court Process After a Second-Degree Burglary Arrest

Understanding the court process helps you know what to expect and how to prepare for each stage:

1. Arrest and Booking: You’re taken into custody, photographed, fingerprinted, and your information is recorded.
2. Arraignment: Your first court appearance, where the charges are formally presented, and you enter an initial plea (guilty, not guilty, or no contest).
3. Bail Hearing: The judge determines whether to set bail and how much.
4. Pretrial Proceedings: Includes discovery (where your attorney receives the evidence against you), filing of motions, and negotiation of possible plea deals.
5. Preliminary Hearing: For felony charges, the prosecution must show there’s sufficient evidence to proceed to trial.
6. Trial: If your case goes to trial, both sides present evidence and arguments to a judge or jury.
7. Sentencing: If convicted, the judge determines your punishment based on various factors, including criminal history and case circumstances.

What Most People Don’t Know About Second-Degree Burglary Charges

Here are some lesser-known facts about second-degree burglary in California:

• Entry Requirement Is Minimal: Even partially entering a structure (such as reaching through a window) meets the legal definition of “entry.”
• Shoplifting vs. Burglary: Since the passage of Proposition 47 in 2014, entering an open business during business hours with intent to steal $950 or less is shoplifting (a misdemeanor), not burglary. However, prosecutors sometimes still try to charge burglary if they can argue you intended to steal more than $950.
• Intent at Time of Entry: The critical question is what you intended when you entered, not what you actually did once inside. If you entered without criminal intent but later decided to steal something, that’s not burglary (though it’s still theft).
• Auto Burglary: Breaking into a locked vehicle is charged as second-degree burglary in California, unlike some states that have separate auto burglary statutes.
• Accomplice Liability: You can be convicted of burglary even if you never entered the building yourself but helped plan or execute the burglary (for example, by acting as a lookout).
• Commercial Burglary Tools: Possession of burglary tools like lock picks, crowbars, or slim jims with intent to use them for burglary is a separate misdemeanor offense under PC § 466.

Why You Need an Experienced Defense Attorney

Second-degree burglary charges demand skilled legal representation for several key reasons:

• The law contains technical elements that can be challenged by a knowledgeable attorney
• The difference between a misdemeanor and felony charge can dramatically affect your future
• An experienced attorney can negotiate for reduced charges, diversion programs, or dismissal
• Without proper representation, you risk maximum penalties and a permanent criminal record

Your attorney will investigate every aspect of your case, identify weaknesses in the prosecution’s evidence, file appropriate motions, negotiate with prosecutors, and present the strongest possible defense in court.

How The Nieves Law Firm Can Protect Your Rights

At The Nieves Law Firm, we understand that being charged with second-degree burglary can be overwhelming. Our experienced criminal defense attorneys have successfully defended numerous clients against burglary charges throughout California.

When you work with our firm, we will:

• Conduct a thorough investigation of the charges against you
• Use our experienced in-house investigator to collect evidence in your favor
• Identify and interview potential witnesses
• Review police reports, surveillance footage, and other evidence for inconsistencies
• File motions to suppress illegally obtained evidence
• Negotiate with prosecutors for reduced charges or dismissal
• Prepare a strong trial defense if your case cannot be resolved through negotiation

We take pride in our approach to burglary defense, developing customized strategies based on the unique circumstances of each case. Our goal is always to achieve the best possible outcome that allows you to move forward with your life.

Don’t face burglary charges alone. Contact The Nieves Law Firm today for a confidential consultation about your case.