Saturday, February 2, 2013

What's the Difference Between a Burglary and a Robbery?

Property Crimes in California - Theft, Burglary, and Robbery

     People often confuse the difference between the lay term for "burglary," "theft," and "robbery" from the legal definitions.  I hope will lay out the basic differences between the three terms, then more specifically delve into each crime as defined under California law.  The confusion lies in that California defines a "Theft" as taking property from someone with the intent not to return it.  Under the law, a "burglary" is entering a building with intent to commit a felony inside.  No completed stealing is required for a burglary.  A "Robbery" is taking property from someone using force or fear.  When someone's house is broken into when she's gone, a burglary may have been committed, but there is no robbery since property was not taken from her body.

1.  THEFT

     "Theft" is taking property, belonging to someone else, with the intent to permanently deprive at the time of the taking.  The distance required for the taking is minimal, as little as a couple feet to a couple steps.  A person cannot steal her own property, but one's own property abandoned or given to someone else becomes "someone else's" property.

     PETTY THEFT - PENAL CODE SECTION 490.5/484(A)

     When a theft occurs as defined above and the value of the property taken is less than $950, then the crime is a Petty Theft  A petty theft can be an infraction (only punishable by a fine) or a misdemeanor punishable with either a fine, informal (summary) probation, jail up to 6 months, or a combination of all three. The punishment will depend on the severity of facts (dollar amount of item(s), number of item(s), and other surrounding facts like children involved), the length of the Defendant's prior criminal record, and personal circumstances of Defendant (age, mental health or life circumstances, etc.)

     GRAND THEFT - PENAL CODE SECTION 487(A)

     When a theft occurs and the value of the property taken is more than $950, then the crime is a Grand Theft.  Grand Theft can be a misdemeanor or felony under California law.  The maximum punishment is up to one year in county jail with probation (as a misdemeanor or felony) or up to 3 years in Prison as a felony (known as a "16-2-3 Felony," which is slang for a felony punishable in prison for 16 months, 2 years, or 3 years).  This charge is eligible for "County Prison" under the prison Realignment Law Penal Code Section 1170(h); see previous post about "County Prison").  A prisoner serves 50% of any sentence in jail or prison if on good behavior under Penal Code 4019.   Grand theft is considered a "Wobbler" (slang term meaning it "wobbles between a misdemeanor or felony).  Whether charged as misdemeanor or felony depends on the same facts listed above; i.e. severity of the facts, length of Defendant's prior criminal record, and personal circumstances of the Defendant.

2.  BURGLARY

     "Burglary" is entering a building or LOCKED car, with the intent to commit a felony inside the building.  Any part of a person's body (whole body or arm) or object the person is holding must cross the thresh-hold of the building's outer boundary (including a window screen).  The building must be a structure enclosed by four walls.  A person must have the intent to commit a felony inside the building at the time of the entering.  If a person entered the building with a lawful intent, formed the intent to commit a crime after entering the building, then there is no burglary.  Intent to commit any type of felony is eligible under the charge. The most common intent is to commit theft, but intent to vandalize, commit violence (domestic), commit sex act are sufficient.  A person is DOES NOT HAVE TO BE SUCCESSFUL in committing the felony inside the building; entering the building with the intent is enough.  There is a very big difference in punishment between burglary of a business (Commercial Burglary) and burglary of a person's home (Residential Burglary).

     COMMERCIAL BURGLARY (2ND DEGREE) - PENAL CODE SECTION 459 (2ND)

     Entering a business or locked car with the intent to commit a felony inside the building is a "2nd Degree Commercial Burglary" ("Commercial Burg" is a slang term) under California.  The charge can be filed as either a misdemeanor or felony ("Wobbler").  Commercial burglaries are punishable up to 1 year in county jail with probation or up to 3 years in prison. This charge is also a "16-2-3 Felony" and eligible for "County Prison" under realignment.  A prisoner serves 50% of any sentence if on good behavior.

     RESIDENTIAL BURGLARY (1ST DEGREE) - PENAL CODE SECTION 459 (1ST)

     California law treats burglary of someone's home much more seriously than a business, therefore the punishments and effect on a person's criminal record are much more severe.  To be charged with a "Res Burg," the building must be a building with 4 walls, a roof, and someone LIVES there ("Inhabited").  A person does not have to be home at the time for a Res Burg to occur.  A house can also be a boat, floating home, trailer coach, or part of a building, as long as someone uses it as the place to live and keep their belongings.  Entering structures attached to the house can become a Res Burg like attached garages, attached home offices, occupied hotel room, and occasionally-occupied guest house.

     A Residential Burglary is a straight Felony (cannot be charged as a misdemeanor) and is a "Strike" if convicted of the charge (See "Strikes" in previous post). The punishment is up to 1 year in county jail with probation, or up to 6 years in STATE Prison (punishment range is 2-4-6 yrs in State Prison).  This charge is NOT eligible for County Prison since it is a Strike.  A prisoner either will do 50% or 85% of a sentence, depending on whether someone was home during the Res Burg ("Person Present").

     Residential Burglary NO PERSON PRESENT

     If a person commits a Res Burg, but no one is home at the time, then this is considered a "Serious" Strike and eligible for 50% off any jail or prison sentence if on good behavior.

     Residential Burglary PERSON PRESENT

     If a person commits a Res Burg and someone is home at the time, then this is considered a "Serious" and "Violent" Strike.  Therefore a person must serve 85% of a State prison sentence, but if a person is sentenced to county jail and probation, she does 50% of the sentence. But if she violates her probation and is sentenced to state prison, her credits for good behavior in county jail are recalculated to reflect only 15% off for good behavior, not the 50% off she originally received while on probation; i.e. if she goes to state prison for a probation violation, she has to do 85% in state prison and county jail.

3.  ROBBERY

     "Robbery" is taking property, belonging to someone else, in that person's presence, with the intent to permanently deprive, by using force or fear (threat of force).  The force or fear must be used at the time of the taking. Force or fear employed after the taking does not count, except in some circumstances (See "Estes Robbery" below) In short, a robbery is a theft by force or fear.  Force can be pushing, hitting, slapping, grabbing, or any kind of non-consentual, negative contact.  No force is needed if there is fear used during the taking. Fear can be verbal like threats of harm, conditional threats (if x, then y), and even non-verbal acts (making a throat-slashing gesture with a hand, lifting up a shirt as if possessing a gun).  In short, the equation below summarizes the robbery definition.

                                    Robbery = Theft + Person Present + Force/Fear

     1st DEGREE ROBBERY - PENAL CODE SECTION 211

     The robbery of a person who is inside her house ("Res Robbery"),  just finished using the ATM, or driving/riding in a taxi are 1st Degree Robberies.  The punishment is as a felony for a range of up to 3-5-6 years in State Prison (3-6-9 years if working in concert with another during commission of a Residential Robbery).  A conviction is considered a "Serious" and "Violent" Strike, therefore a prisoner has to serve 85% of any State Prison sentence if on good behavior. This charge is not eligible for County Prison since it is a Strike.

     2nd DEGREE ROBBERY - PENAL CODE SECTION 211

     All other robberies other than the ones listed above are 2nd Degree.  The punishment is as a felony for up to 1 year in county jail with probation, or for 2-3-5 years in State Prison.  A conviction here is also considered a "Serious" and "Violent" Strike, therefore a prisoner has to serve 85% of any State Prison sentence if on good behavior.  This charge is not eligible for County Prison since it is a Strike.

     "ESTES ROBBERY" SITUATION - Use of Force in Escaping After Theft

     Normally, a robbery must be a taking of property in the person's presence.  Stealing property from a store is not a robbery since the taking is not in the owner's presence, but a special situation arises when force is used to try to escape after a theft occurs in California.  Under the holding from a criminal case called People v. Estes, it is a robbery under California law when a person uses force or fear to escape after committing a theft.  Often misdemeanor law violations like petty theft or burglary escalate into felony robbery charges when the Defendant is accused of pushing, punching, fighting with store employees in trying to escape the situation or escape with their property.  DO NOT LET THIS SITUATION OCCUR TO YOU OR YOUR FRIEND OR YOUR FAMILY.  In general, fighting or using force to escape the situation creates the possibility that charges can escalate if caught.


2 comments:

  1. Burglary is a crime of illegal entry into a building for the aim of committing an offence and Robbery is a taking something forcefully from another person which are divided in some types of degrees.

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  2. Too bad many people use these two terms interchangeably.

    ReplyDelete