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Marsha411JD
Marsha411JD, Lawyer
Category: Criminal Law
Satisfied Customers: 20179
Experience:  Licensed attorney with 29 yrs. exp. in criminal law
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CAN YOU EXPLAIN THIS CHARGE: 459-460 b pc burglery second degree

Resolved Question:

CAN YOU EXPLAIN THIS CHARGE: 459-460 b pc burglery second degree commercial structure larceny only
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Marsha411JD replied 5 years ago.
Need to know what State this is in. It would also help if I knew what part you didn't understand.
Customer: replied 5 years ago.
ca
Expert:  Marsha411JD replied 5 years ago.
Hello again,

Thank you for the information although I don't see where you answered my question about what it was that you didn't understand. So, all I can do is provide you with the statute and give you a general explanation. If you need something more you will actually have to communicate what it is you do not understand in the statute.

If the charge says 460 b on it, then it would be a second degree burglary charge. Please see the statutes below and let me know if you have additional questions.

459. Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, as defined in Section 21 of the Harbors and
Navigation Code, floating home, as defined in subdivision (d) of
Section 18075.55 of the Health and Safety Code, railroad car, locked
or sealed cargo container, whether or not mounted on a vehicle,
trailer coach, as defined in Section 635 of the Vehicle Code, any
house car, as defined in Section 362 of the Vehicle Code, inhabited
camper, as defined in Section 243 of the Vehicle Code, vehicle as
defined by the Vehicle Code, when the doors are locked, aircraft as
defined by Section 21012 of the Public Utilities Code, or mine or any
underground portion thereof, with intent to commit grand or petit
larceny or any felony is guilty of burglary. As used in this
chapter, "inhabited" means currently being used for dwelling
purposes, whether occupied or not. A house, trailer, vessel designed
for habitation, or portion of a building is currently being used for
dwelling purposes if, at the time of the burglary, it was not
occupied solely because a natural or other disaster caused the
occupants to leave the premises.

460. (a) Every burglary of an inhabited dwelling house, vessel, as
defined in the Harbors and Navigation Code, which is inhabited and
designed for habitation, floating home, as defined in subdivision (d)
of Section 18075.55 of the Health and Safety Code, or trailer coach,
as defined by the Vehicle Code, or the inhabited portion of any
other building, is burglary of the first degree.
(b) All other kinds of burglary are of the second degree.
(c) This section shall not be construed to supersede or affect
Section 464 of the Penal Code.
Customer: replied 5 years ago.
what is the difference in 1st degree and 2 degree?
Expert:  Marsha411JD replied 5 years ago.
Hello again,

I am not sure what you mean by "difference" but if you are asking what the difference in punishments are then that would be that a 1st degree burglary is always prosecuted as a felony and therefore punishment would be more severe by way of up to six years in prison and a fine of up to $10,000. Whereas 2nd degree burglary can be charged as a felony or a misdemeanor. If charged as a misdemeanor then the punishment would be up to a year in county jail and a fine of up to $1000. So, as you can see, big difference in punishments.
Customer: replied 5 years ago.
what is the determining factor between found guilty of misd vs felony with 2nd degree?
Expert:  Marsha411JD replied 5 years ago.
The determining factor isn't how you would be found guilty but instead how you would be charged. In other words, it is up to the State to determine how the 2nd degree burglary charge will be charged. They will choose either the felony level or misdemeanor. The State will only charge this as a felony if there are prior criminal convictions. If there is no prior criminal record, a 2nd degree will be charged as a misdemeanor.
Customer: replied 5 years ago.
i have a resdential burglry charge that is 10 years old. never violated parole. have a strike from it. do you think it will go felony?
Expert:  Marsha411JD replied 5 years ago.
I can't tell you with any certainty because that is something that the individual ADA will decide based on the standard charging procedures of the office. That is definitely something you will want to speak to your attorney about. It certainly doesn't help that you have a prior that is a similar crime. Again though totally up to their discretion. However, your attorney may be able to negotiate the misdemeanor charge as a plea agreement even if you are initially charged with the felony.
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