Monday, October 13, 2014

PC 459 Second Degree Commercial Burglary: Law, Defense, & Consequence

Second Degree Commercial Burglary: Penal Code 459 (PC 459)
Law, Defense, & Consequences

The Law of PC 459 Commercial Burglary

The crime of commercial burglary is found at California penal code section 459, or simply PC 459. Commercial burglary is sometimes referred to as second degree burglary. PC 459, or second degree commercial burglary may be charged as a misdemeanor or as a felony in California. Whether or not the District Attorney files misdemeanor or felony commercial burglary charges depends on the several factors, including the defendant's criminal history, the sophistication of the burglary, the amount stolen, etc. (Length of possible jail time for both misdemeanor and felony commercial burglary charges under PC 459 is discussed under consequences below).

In order to prove the crime of second degree commercial burglary under PC 459 the District Attorney must prove that the defendant entered a store, building, or structure, (but not a home) with the intent to commit theft inside the store, building, or structure. The intent to commit theft must have occurred before the defendant enters the store, building, or structure in order for the district attorney to prove second degree commercial burglary.

It is important to remember that the defendant commits second degree commercial burglary under PC 459 the very instant he enters the store, building, or structure if when he enters he has the intent to commit theft therein. It doesn't matter if the defendant never actually steals anything (of course, without stealing anything there is usually very little evidence, other than a conspiracy with another person, that the defendant intended to burglarize the store, building, or structure).

The defenses to PC 459 Commercial Burglary

Probably the most common defense to a charge of second degree commercial burglary under PC 459 is insufficient evidence to prove that the defendant formed the intent to steal before he entered the store, building, or structure. This is especially true if the defendant has money or credit cards on him when he is apprehended inside a shopping store (i.e. Walmart, Costco, Target, KMart, Mall, Fair, Supermarket, etc.).

The fact that a person accidentally walks out of a store with merchandise does not equal commercial burglary. The defendant must have intended to steal property from the store before he enters the store. Even if the defendant forms the intent to steal merchandise after he is in the store the defendant will not have committed commercial burglary because he did not form the intent to steal until after he was in the store.

Another popular defense to second degree commercial burglary under PC 459 includes the defense of necessity. The defense of necessity may apply where the defendant is caught stealing medicine that he needs and he doesn't have the funds to pay for them or where the defendant's primary concern is seeking emergency medical attention.

It's important to remember that if you are apprehended for a violation of second degree commercial burglary under PC 459 in California you should absolutely not speak to store authorities or the police. In most cases, the defendant's own statements become the best evidence against the defendant. This is because it is often times difficult to determine when the defendant formed the intent to steal merchandise or property (whether before he entered the store or after he entered the store) without the defendant's own statements. Of course, if the defendant has no money on him at the time he is apprehended for second degree commercial burglary, or if he has a criminal history of second degree commercial burglary, if could be more difficult to defend against PC 459 charges even if the defendant has not made any statements.

Other defenses may apply to a charge of second degree commercial burglary under PC 459, but insufficient evidence to prove intent to commit theft (due to common absent mindedness when leaving a store before paying for merchandise), the timing of intent to commit theft (whether before or after entering a store, building, or structure), and necessity, are the most common defenses.

Another defense to second degree commercial burglary under PC 459 include a statute of limitation defense. This is a very unusual defense to PC 459 charges but technically it does apply. Basically, if the District Attorney waits more than a year to file misdemeanor PC 459 charges, or more than three years to file felony PC 459 charges then the judge will dismiss the case before the charges are even read against the defendant. This is because there is a time limit on how long the District Attorney has to file charges of PC 459 against a defendant in California.

The Consequences of PC 459 Commercial Burglary

When second degree commercial burglary under PC 459 is charged as misdemeanor the defendant may face up to one year in jail. When the District Attorney has charged second degree commercial burglary under PC 459 as a felony the defendant may face up to three years in prison.

Second degree commercial burglary under PC 459 is considered an "1170h" crime, which means that the defendant may serve all of his possible jail or prison sentence at a local county jail. In addition, if the defendant is ordered to serve any jail time at all his sentence will be reduced by one day for every day he is in custody for "good behavior." This is commonly known as 50% credit, or day-for-day credit.

In many cases it may be possible to reduce the jail time that a defendant is facing through a plea bargain, commonly known as a negotiated plea. In other cases, it may be possible to actually change the charge to a lesser charge so that the defendant can plead not guilty or no contest to a lesser criminal charge. Finally, in some cases, it may be possible to reduce the charge and the amount of jail time that the defendant is facing under PC 459 charges.

With respect to jail time, often times the defendant can face any jail sentence under house arrest or work release (this depends on the the defendant's criminal history and the facts of the case).

In addition to possible jail time for second degree commercial burglary charges under PC 459, if found guilty, the defendant will very likely be ordered to pay restitution (an amount require to restore the losses incurred by the victim, store, etc.). Furthermore, PC 459 convictions are considered convictions to moral turpitude crimes (bad intent crimes), which means that the defendant could face possible professional license restrictions (such as doctors, dentists, lawyers, etc.), and persons who are not citizens of the United States may face possible deportation from the U.S.

Other penalties for second degree commercial burglary charges under PC 459, include fine, stay away order, probation terms, felony probation visits to home or work by probation officers, and more.

Prior Convictions of second degree commercial burglary under PC 459 remedies

The good news is that second degree commercial burglary convictions under PC 459 are almost always subject to expungement of criminal records. All misdemeanor PC 459 burglary convictions and most felony PC 459 burglary conviction are capable of being expunged (unless the defendant served more than a year for a felony conviction of PC 459 burglary). Where the defendant served more than a year for a second degree commercial burglary conviction under PC 459 there is a possibility that the defendant may have the conviction pardoned (cleared from his criminal record).

The other good news is that second degree commercial burglary is not considered a strike under California Three Strikes Law. In addition, the charge of both misdemeanor and felony second degree commercial burglary under PC 459 is not considered a serious or violent felony under California law.

If you or a loved one is charged with commercial burglary under PC 459, contact criminal defense attorney Christopher Doado without delay. Attorney Dorado will patiently explain your rights, possible defenses, and options. 100% of attorney Dorado's practice is dedicated to criminal defense and initial in-office consultations are provided at no cost to the accused. In many cases attorney Dorado can represent you without the need for you to attend court.

Call today for a free consultation concerning PC 459 second degree commercial burglary charges in California. Thank you for visiting.

909.913.3138

84017804.jpg (354×237)


To learn more about Commercial Burglary charges under PC 459, or criminal defense and procedure in general, please visit our website at http://www.CriminalDefense909.com  Thank you.
PC 459 Second Degree Commercial Burglary

Tuesday, October 7, 2014

PC 484 Theft Laws & Defenses / California Criminal Defense Attorney Penal Code 484-487

California Theft Law Under PC 484(a)

California theft law, defenses, and consequences

There are many types of criminal theft charges in California. By far the most common theft charge is found at California Penal Code Section 484(a).

To be found guilty of PC 484(a), the District Attorney must prove that the defendant took property that was not his and that when he took the property it was with the intent to permanently the true owner of the property.  

In order for the crime of theft under PC 484(a) to be complete the defendant must have moved the property at least some distance but that distance can be very small. For example, a defendant who takes property off a shelf in a department store and puts it in his jacket with the intent to permanently deprive the store owner of the property is guilty of theft under PC 484(a) even if the defendant is apprehended immediately after removing the stolen item from the department store shelf.

Furthermore, in order for the crime of theft under PC 484(a) to be complete the defendant must have intended to permanently deprive the true owner of the property. For example, if a defendant borrows his neighbors lawn mower without permission but he intends to return the lawn mower after mowing his lawn then theft under PC 484(a) is not a valid charge because the defendant never intended to permanently deprive the owner of the lawn mower.

PC 484(a) may be classified as either an infraction (where less than $50  is stolen under PC 484(a)/490.5), a misdemeanor (where under $400  is stolen), or as a felony (where more than $400 is stolen).

When PC 484(a) is charged as an infraction under PC 484(a)/490.5, the defendant is usually ordered to repay the market value of the stolen property or the restocking value where the property is recovered. When PC 484(a) is charged as a misdemeanor the defendant faces up to 180 days in jail. When PC 484(a) is charged as a felony the defendant faces up to 3 years in prison.  

Consequences for theft conviction under PC 484(a)

PC 484(a) is considered an "1170h" crime, which means that the defendant may serve any jail sentence in a local county jail as opposed to a California state prison. In addition, PC 484(a) is not considered a serious or violent crime in California and therefore the defendant is entitled to "day-for-day" credit, or 50% credit (this means that for every day the defendant serves in jail he receives credit for two days if he serves his time without bad behavior).

In addition to jail, if found guilty of theft under PC 484(a) the defendant will likely be placed on probation, ordered to pay fines or restitution, ordered to stay away from certain people or shopping areas, and more.

Other collateral consequences for convictions of theft under PC 484(a) include possible loss of professional license (such as Medical, Law, Dentistry, Nursing, etc.), possible immigration consequences (for non-U.S. citizens), possible civil lawsuits, possible family law legal problems, and more.

Note: Theft under PC 484(a) is considered a "moral turpitude" crime and a guilty plea, or a finding of guilty after a jury trial, will lead to adverse consequences for immigration status and defendant's who hold professional or occupational licenses.

Defenses to theft charges under PC 484(a)

Common defenses to theft charges under PC 484(a) include, but are not limited to, lack of intent to permanently deprive the true owner of the property (for example, taking a vehicle for a joyride or taking any property with the intent to return the property or pay for it later), insufficient evidence as to identity of the defendant, entrapment, necessity, reasonable belief that the true owner of the property gave consent to use, borrow, or have the property, insanity, and mistake of fact (as to whom actually owns the property).

If a defendant is charged with theft under PC 484(a) the first thing he or she should do is contact a qualified and experienced criminal defense attorney without delay. In many cases, the defendant does not need to appear in court as his attorney may appear for him on misdemeanor PC 484(a) criminal charges. 

Contact criminal defense attorney Christopher Dorado today for a free consultation if you or a loved one is charged with theft under PC 484(a). 100% of attorney Dorado's practice is dedicated to criminal defense and our office is available for advice 7 days a week.

Closely related crimes to theft under PC 484(a) include:

PC 211 Robbery, PC 368 Theft from Elders, PC 530.5 Identity Theft, PC 459 Burglary, PC 503 Embezzlement, PC 596(A) Receipt of Stolen Property, VC 10851(a) Vehicle Theft, W&I 10980 Welfare Fraud, PC 484(A)/490.5 Petty Theft, PC 215(a) Carjacking, PC 666(a) Petty Theft with Priors.