Burglary Defense Attorney in Kern County

PC § 459 Lawyer Bakersfield

Expert Defense Against Residential & Commercial Burglary, Breaking & Entering Charges in Bakersfield, Delano, Ridgecrest, Wasco & All Kern County

Charged with burglary in Kern County? You’re facing California’s most serious property crime—residential burglary is a violent felony STRIKE offense carrying 2-6 years in state prison with 50% minimum custody, even for first-time offenders. Whether accused of home burglary, commercial burglary, auto burglary, or shoplifting wrongly charged as burglary, PC § 459 convictions carry devastating consequences including mandatory prison time, lifetime criminal records, and the violent felony label that follows you forever.

Attorney Armando Josué Cespedes provides aggressive burglary defense throughout Kern County—Bakersfield, Delano, Ridgecrest, Wasco, Arvin, Shafter, Tehachapi, McFarland, California City, and every Kern County community. Perfect 5.0 Avvo rating with 34 five-star reviews and three consecutive Client’s Choice Awards (2023, 2024, 2025).

Many burglary charges involve lack of intent to commit crime upon entry, consent to enter, misunderstandings about shoplifting laws, or cases where you entered lawfully then formed criminal intent later. We challenge prosecution’s intent evidence and fight STRIKE allegations aggressively.

Free Confidential Consultation: (888) 315-3326 | Available 24/7 | Hablamos Español

Understanding California’s Burglary Law

Penal Code § 459 – Burglary

The Law: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, vehicle (when doors are locked), mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

Critical Elements Prosecution Must Prove:

1. You entered a structure (building, room, vehicle, etc.)
2. At the time you entered, you intended to commit theft or any felony inside
3. (For first degree) The structure was an inhabited dwelling

Key Element – Intent Upon Entry: Most critical aspect of burglary—must have intent to steal or commit felony at the moment of entry. If you entered lawfully (or without criminal intent) and later decided to steal, it’s theft, not burglary.

Example:

• Burglary: Enter store planning to shoplift = burglary (entered with intent to steal)
• Not Burglary: Enter store to shop, then decide to steal = shoplifting or theft (formed intent after entry)

Two Degrees of Burglary

First Degree Burglary (PC § 459 – Residential):

• Burglary of inhabited dwelling house, vessel, floating home, trailer coach, or portion of building inhabited
• “Inhabited” means someone uses it as dwelling (even if no one home at time of burglary)

Penalties:

• Felony: 2, 4, or 6 years state prison
• STRIKE offense under Three Strikes Law
• 50% custody minimum (must serve at least half of sentence)
• Cannot be reduced to misdemeanor
• Formal probation possible but difficult to obtain

Second Degree Burglary (PC § 459 – Commercial):

• All other burglaries (stores, businesses, warehouses, vehicles, uninhabited structures)

Penalties:

• Wobbler (misdemeanor or felony)
• Misdemeanor: Up to 1 year county jail
• Felony: 16 months, 2, or 3 years state prison (or county jail)
• Can be reduced to misdemeanor
• Probation more likely

Proposition 47 and Burglary

PC § 459.5 – Shoplifting Created (2014):

According to ^[1]California Courts Proposition 47^[1], voters created separate shoplifting statute:

Shoplifting Definition: Entering commercial establishment with intent to commit larceny while establishment open during regular business hours, where value of property taken or intended to be taken does not exceed $950.

Effect on Burglary:

• Shoplifting now misdemeanor PC § 459.5 (not burglary)
• Maximum penalty: 6 months jail, $1,000 fine
• Cannot be charged as burglary if meets shoplifting elements

When Burglary Still Applies:

• Store closed/after hours (not open during regular business hours)
• Property over $950
• Enter residence (not commercial establishment)
• Enter non-commercial structure
• Intent to commit felony other than theft

Kern County Burglary Statistics and Enforcement

Burglary in Kern County

According to the ^[2]California Department of Justice OpenJustice^[2]:

Burglary Data:

• Kern County reported thousands of burglary offenses annually
• Includes residential and commercial burglaries
• Burglary rate significant throughout county

Common Target Areas:

Residential Burglaries:

• Bakersfield neighborhoods (Northwest, Southwest, East Bakersfield)
• Rural homes (Tehachapi, outlying areas – often unoccupied for extended periods)
• Apartment complexes
• Oil field worker housing (workers away for shifts)

Commercial Burglaries:

• Retail stores (after-hours break-ins)
• Warehouses and storage facilities
• Construction sites (tool/equipment theft)
• Agricultural operations (equipment, fuel theft)

Auto Burglaries:

• Parking lots (malls, shopping centers)
• Residential streets
• Hotel/motel parking lots

Law Enforcement Response

Investigation:

• Bakersfield Police Department^[3] Property Crimes Unit
• Kern County Sheriff’s Department^[4] rural area investigations
• Crime scene processing (fingerprints, DNA, shoe prints)
• Surveillance video collection
• Pawn shop monitoring (for stolen property recovery)

Prosecution: ^[5]Kern County District Attorney^[5] prosecutes burglary cases aggressively:

• Residential burglary always charged as felony (STRIKE)
• Commercial burglary charged as felony if significant value or repeat offender
• Enhanced sentences for serial burglars
• Restitution demanded for all losses

Common Kern County Burglary Scenarios

Residential Burglary (First Degree)

Typical Cases:

Daytime Home Burglaries:

• Burglars target homes during work hours (9 AM – 5 PM)
• Entry through unlocked doors/windows, forced entry
• Target bedrooms (jewelry, cash, guns, electronics)
• Quick in-and-out (5-10 minutes)

Nighttime Burglaries:

• While residents asleep or away
• More dangerous (confrontation possible)
• Enhanced penalties if occupied

Vacation/Unoccupied Homes:

• Target homes appearing vacant
• Mail piling up, no lights, overgrown yard
• Extended absence (vacations, hospitalizations)

Rural Properties:

• Isolated locations in Kern County
• Less police presence
• Agricultural equipment, tools, firearms targeted

Evidence Used:

• Forced entry (broken windows, pried doors, lock damage)
• Ransacked rooms (drawers open, items strewn)
• Stolen property (missing electronics, jewelry, guns)
• Fingerprints, DNA, shoe prints at scene
• Surveillance video (neighbor cameras, doorbell cameras)
• Pawn shop records (stolen items recovered)
• Cell phone location data

Commercial Burglary (Second Degree)

Retail Store Burglaries:

• After-hours break-ins (smash windows, break locks)
• Target cash registers, safes
• Merchandise theft
• ATM thefts

Warehouse/Storage Burglaries:

• Large-scale thefts of merchandise
• Tools, equipment, copper wire
• Palletized goods loaded into trucks

Construction Sites:

• Tool theft (power tools, generators)
• Copper wire, piping
• Building materials

Business Office Burglaries:

• Computers, electronics
• Sensitive documents (identity theft)
• Petty cash

Agricultural Burglaries (Common in Kern County):

• Tractors, irrigation equipment
• Fuel theft
• Harvested crops
• Significant economic impact on farmers

Auto Burglary (Second Degree)

Vehicle Burglary Elements:

• Vehicle must be locked
• Intent to steal from vehicle or steal vehicle itself at time of entry

Common Scenarios:

• Smash and grab (break window, take visible items)
• Catalytic converter theft (enter underside of vehicle)
• Tool theft from work trucks
• GPS, stereo, personal items

Kern County Hot Spots:

• Mall parking lots (Valley Plaza, East Hills Mall)
• Hotel/motel parking
• Park and ride lots
• Residential streets (overnight)

Powerful Defenses to Burglary Charges

1. No Intent to Commit Crime Upon Entry (Most Important Defense)

The Law: Burglary requires specific intent to commit theft or felony at the moment you entered. If you formed intent after entering, it’s not burglary.

What We Prove:

• You entered lawfully or without criminal intent
• You decided to steal only after already inside
• You entered for legitimate purpose
• No evidence of intent at time of entry

Examples:

• Entered store to shop, later decided to shoplift (shoplifting, not burglary)
• Entered open garage to ask for directions, saw property and took it (theft, not burglary)
• Entered with permission, later took something (theft, not burglary)
• Changed your mind after entering

Evidence:

• Surveillance video showing normal shopping behavior before theft
• Your conduct upon entry (not furtive, no concealment attempts)
• Time spent inside before theft (long time = suggests formed intent later)
• Your statements showing lack of plan

Result: No intent upon entry = essential element not proven = burglary reduced to theft or dismissed

Critical: This is single most important burglary defense. Prosecution must prove mental state at moment of entry—difficult to prove beyond reasonable doubt.

2. Consent to Enter / Right to Be Present

The Law: If you had permission to enter or right to be on property, no unlawful entry.

What We Prove:

• Owner/resident gave you permission to enter
• Door unlocked/open to public
• You lived there or had key
• Legitimate right to be present

Examples:

• Roommate, family member, or co-tenant (you live there)
• Invited guest
• Business open to public during business hours
• Landlord entering rental property
• Employee with access

Evidence:

• Your residency (mail, ID showing address)
• Witness testimony you were invited
• Keys in your possession
• Employment records showing you work there
• Text messages showing permission to enter

Result: Lawful entry = no burglary (may face theft if property taken, but not burglary)

3. Claim of Right to Property

The Law: If you entered to retrieve property you honestly believed belonged to you, no intent to steal.

What We Prove:

• You believed property inside was yours
• You entered to retrieve your property
• Belief was honest (even if mistaken)
• No intent to steal from owner

Examples:

• Retrieved your belongings from ex-partner’s home
• Entered to get property you left at friend’s house
• Business partner retrieving business property from business
• Repossessed property you believed you owned

Evidence:

• Communications about property ownership
• Receipts showing you purchased items
• Witnesses confirming property was yours
• History of possession

Result: Claim of right = no intent to steal = not guilty of burglary

4. Shoplifting (PC § 459.5) Not Burglary

Proposition 47 Defense:

What We Prove:

• You entered commercial establishment
• During regular business hours
• Intended to commit larceny (theft)
• Property valued at $950 or less

Result: Meets PC § 459.5 shoplifting = charged as misdemeanor shoplifting, NOT felony burglary

Critical for Clients: Many people wrongly charged with burglary for shoplifting. We force reduction to PC § 459.5 misdemeanor.

Example:

• Entered Target during business hours planning to steal $200 of merchandise
• Wrong charge: Burglary (felony)
• Correct charge: Shoplifting PC § 459.5 (misdemeanor)

5. Mistaken Identity

The Law: Prosecution must prove YOU committed burglary.

What We Prove:

• You weren’t at location when burglary occurred
• Alibi (you were elsewhere)
• No physical evidence linking you (fingerprints, DNA, shoe prints)
• Eyewitness identification unreliable

Common in:

• Residential burglaries (no witnesses saw burglar’s face)
• Recovered stolen property from third party (you didn’t burglarize, bought from real burglar)
• Similar appearance to actual burglar

Evidence:

• Alibi witnesses
• Time-stamped evidence (receipts, video, GPS, cell phone location)
• Lack of forensic evidence
• No stolen property found in your possession

Result: Cannot prove you committed burglary = not guilty

6. Illegal Search and Seizure (Fourth Amendment)

Challenge How Evidence Obtained:

What We Challenge:

• Illegal vehicle search (found stolen property)
• Illegal home search without warrant
• Probation search exceeded scope
• Coerced consent

Examples:

• Police searched car without probable cause, found stolen items
• Police entered home without warrant, saw stolen property
• Probation search for compliance became exploratory search for evidence

Evidence:

• Lack of probable cause for search
• No warrant or valid exception
• Your statements showing no consent

Result: Illegal search = evidence suppressed = case weakened or dismissed

7. Insufficient Evidence / Reasonable Doubt

Challenge Prosecution’s Case:

What We Prove:

• No direct evidence you committed burglary
• Circumstantial evidence weak
• Alternative explanations exist
• Witnesses unreliable

Examples:

• No fingerprints, DNA, or forensic evidence
• Stolen property recovered but no proof you burglarized (could have bought from real burglar)
• Surveillance video unclear
• Alibi creates doubt

Result: Insufficient evidence = reasonable doubt = not guilty

8. False Accusation

Reality: False burglary accusations occur in:

• Domestic disputes (ex-partner claims you burglarized after breakup)
• Property ownership disputes
• Insurance fraud (owner claims burglary, blames you)
• Jealous neighbors

What We Prove:

• Accuser has motive to lie
• No burglary occurred (property misplaced, not stolen)
• Accuser fabricated to hurt you
• Timeline inconsistencies

Evidence:

• Communications showing accuser’s motive
• Accuser’s credibility issues
• Lack of corroboration

Result: False accusation exposed = not guilty

9. Reduce First Degree to Second Degree Burglary

If Cannot Win Outright:

What We Argue:

• Structure was not “inhabited dwelling”
• Building was commercial, not residential
• Nobody living in structure

Result: First degree reduced to second degree = avoid STRIKE, reduce sentence from 2-6 years to 16 months-3 years, misdemeanor possible

10. Reduce Felony to Misdemeanor (Second Degree Only)

For Second Degree Burglary (Wobbler):

What We Argue:

• First offense
• Low value of property
• No forced entry
• No criminal history
• Strong ties to community

Result: Felony reduced to misdemeanor = maximum 1 year jail (not state prison), no STRIKE, expungement possible

Special Burglary Issues

Intent to Commit “Any Felony”

Burglary Doesn’t Require Theft: Can enter with intent to commit any felony (not just theft):

• Intent to commit assault
• Intent to commit vandalism (felony)
• Intent to commit rape
• Intent to commit arson

Examples:

• Enter home intending to assault ex-partner = burglary
• Enter business intending to vandalize = burglary

Defense:

• Challenge evidence of intent to commit felony
• Prove only intended misdemeanor (not burglary)

Attempted Burglary (PC § 664/459)

The Law: Attempted burglary if you took direct step toward entering with intent to commit crime but didn’t complete entry.

Examples:

• Attempted to break window but fled before entering
• Tried to pick lock but unsuccessful
• Approached door intending to enter but stopped

Penalties:

• First degree: 1, 2, or 3 years state prison
• Second degree: 6 months/1 year jail OR 16 months/2/3 years prison

Defense:

• No intent to enter
• No direct step toward entry
• Abandoned attempt (withdrawal)

Burglary vs. Trespass

PC § 602 – Trespass: Entering property without permission.

Key Difference:

• Trespass: Enter without permission (no intent to commit crime)
• Burglary: Enter with intent to commit theft or felony

If Cannot Prove Intent: Burglary reduced to trespass (misdemeanor).

Auto Burglary Specifics

Vehicle Must Be Locked: If vehicle unlocked, not burglary (may be petty theft).

Intent:

• Intent to steal from vehicle, OR
• Intent to steal vehicle itself (grand theft auto)

Common Defenses:

• Vehicle unlocked (no burglary)
• Had permission to access vehicle
• Vehicle was yours (can’t burglarize own vehicle)

Residential Burglary STRIKE Consequences

Three Strikes Impact:

First STRIKE (First Degree Burglary):

• 50% custody minimum
• Future felony conviction = doubled sentence

Second STRIKE:

• Any new felony = doubled sentence
• 80% custody

Third STRIKE:

• 25 years to life

Romero Motions: We file PC § 1385 motions to strike STRIKE allegation in interests of justice.

Sentencing Enhancements for Burglary

Common Enhancements

Person Present (PC § 667.5(c)(21)):

• Residential burglary while someone home
• Enhanced penalties
• Violent felony designation

Great Bodily Injury (PC § 12022.7):

• If victim injured during burglary
• Additional 3-6 years

Firearm Enhancement (PC § 12022.5, § 12022.53):

• Armed during burglary
• Used firearm during burglary
• Additional years to life

Gang Enhancement (PC § 186.22):

• Burglary for benefit of gang
• Additional 2-4 years
• Violent felony minimum 10 years

Prior Convictions:

• Prior burglary convictions enhance sentences

Restitution in Burglary Cases

Victim Restitution (PC § 1202.4)

Must Pay Victims:

• Stolen property value
• Property damage (broken windows, doors, locks)
• Repair costs
• Lost wages
• Emotional distress counseling

Examples:

• Broke window ($500) + stole jewelry ($5,000) + door repair ($300) = $5,800 restitution
• Damaged door during entry ($1,200) + stole electronics ($2,000) + victim counseling ($500) = $3,700 restitution

Collection:

• Wage garnishment
• Bank levies
• Tax refund intercepts
• 10-year enforcement (renewable)

Civil Lawsuits

Victims Can Sue:

• Actual damages
• Punitive damages
• Attorney’s fees

Treble Damages: Some burglary allows triple damages under civil statutes.

Why Choose Tu Defensor Criminalista for Burglary Defense

Intent Upon Entry Expertise

• Challenge prosecution’s intent evidence
• Present evidence showing no criminal intent at time of entry
• Prove lawful entry with intent formed later

STRIKE Litigation

• Fight first degree burglary STRIKE allegations
• File Romero motions to strike priors
• Reduce first degree to second degree when possible

Proposition 47 Advocacy

• Force reduction from burglary to shoplifting PC § 459.5
• Ensure proper charging under Prop 47
• Protect clients from wrongful burglary charges

Forensic Evidence Challenge

• Cross-examine forensic experts
• Challenge fingerprint, DNA evidence
• Attack chain of custody
• Hire defense experts

Alibi Defense

• Present compelling alibi evidence
• Time-stamped documentation
• Witness testimony
• Cell phone location data

Kern County Experience

• Regular appearances in^[6]Kern County Superior Court^[6]
• Relationships with^[5]Kern County DA^[5] prosecutors
• Knowledge of local judges’ sentencing practices
• Understanding of Kern County jury attitudes

Trial Advocacy

• Extensive burglary trial experience
• Not afraid to take cases to trial
• Aggressive cross-examination
• Expert witnesses when needed

Proven Results

• Perfect 5.0 Avvo rating
• 34 five-star reviews
• Three consecutive Client’s Choice Awards
• Numerous burglary dismissals, reductions, acquittals

Bilingual Services

• Complete representation in Spanish

Frequently Asked Questions

Contact Tu Defensor Criminalista for Burglary Defense

Burglary convictions mean STRIKE offenses, state prison, 50% custody minimums. Intent upon entry is everything—we challenge prosecution’s proof. Shoplifting wrongly charged as burglary. Don’t accept STRIKE without fighting.

Protecting Your Rights. Fighting STRIKE Allegations. Challenging Intent Evidence Throughout Kern County.