If I was caught shoplifting but charged with intent for burglary, how can get it brought down to a misdemeanor?

UPDATED: Feb 12, 2012

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If I was caught shoplifting but charged with intent for burglary, how can get it brought down to a misdemeanor?

Asked on February 12, 2012 under Criminal Law, California


Aaron Fontana / Law Office of Aaron M. Fontana

Answered 11 years ago | Contributor

As an initial matter, you should probably consider getting an attorney as a felony is serious business in California and for that matter, any other state.

I am assuming that you are being charged with an attempt to commit California Penal Code Section 459, burglary. Under California law, burglary is the act of entering into a building with the intent of committing a felony within, whether that be theft or another crime.

Note: Remember this very specific language for later in this answer!

First, Section 459 is a wobbler, which means it can be charged as either a misdemeanor or a felony, depending on the circumstances. Your first approach may be to try to convince the D.A. that based on your (hopefully) clean record and the (hopefully) largely inane circumstances surrounding the crime in question, that a misdemeanor is in order. 

Even if you have a record and the crime itself was serious, this approach could be fruitful. On the other hand, it may not be successful even if, say, your record is squeaky clean and you are the future savior of the world. District attorneys, after all, are not always the most sympathetic folk - and they're often hired because of this quality.      

Second, you may try to get the charges dropped altogether. You can do this by showing at trial or before trial that based on the facts, you did not commit or could not have committed a burglary or a burglary attempt. To do this, you must establish that you did not have the intent to commit the crime PRIOR to entering the building. After all, the clear language requires that you formulated such a plan BEFORE going into the building - NOT once inside. It is often difficult for the D.A. to make a showing of such intent, especially if you have good facts to back your story up.     

There are other approaches, but these stand out as the first line of attack in most burglary cases. I suggest that you have an attorney evaluate the specific facts of your case for additional defense tactics. 

Good luck - And may the (legal) power be with you!    

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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