It’s not uncommon to confuse the crime of robbery with the crime of burglary and vice versa. In fact, the phrase “our house got robbed while we were out of town” sounds more correct for some reason than the phrase “our house was burgled (or burglarized) while we were out of town” even though the latter phrase is more correct.
In any event, the most basic difference between the crime of robbery and the crime of burglary is that the crime of robbery involves the defendant’s use of force or threats against a victim, while the defendant commits theft against that victim, and burglary involves the breaking, and entering, a structure for the purpose of committing a theft of felony within the structure. The crime of burglary does not require a victim to be in the structure that is burgled for the crime of burglary to be committed.
The basic difference between robbery and burglary, as described above, should serve you well for the rest of your life, unless you’re a law school student, a criminal defense lawyer, or you simply have an unyielding thirst for a deeper understanding of the criminal law. If so, read on and enjoy!
Robbery Defined: Robbery is defined as the unlawful taking, and carrying away with, the personal property of another, with the use of force or threats, and with the intent to permanently deprive the victim of the personal property taken. In simpler terms, robbery is theft from a person with force or threats.
For example, it is robbery to steal a purse from the person holding the purse.
Personal Property Required: The crime of robbery requires the theft of personal property, such as a purse, wallet, cash, clothes, briefcase, jewelry, etc. In other words, it is not robbery when the defendant threatens the victim to have the victim sign documents to transfer a parcel of land from the victim to the defendant.
Force: Robbery requires the use of force or threats to be accomplished. However, the amount of force needed to commit robbery is very little.
For example, a purse snatcher commits robbery even if the cheap and weathered purse strap, that breaks from the woman’s shoulder during the purse snatching, breaks with surprising ease.
Also, force may be shown in a robbery case where the defendant takes personal property without the defendant’s resistance, if the defendant is the person who rendered the victim unable to resist.
For example, if the defendant knocks the victim unconscious and then takes the victim’s wallet from the unconscious victim, then the defendant has committed robbery even though the victim is not resisting the taking of his wallet. On the other hand, if a defendant, who is not the defendant that knocked the victim unconscious, takes the victim’s wallet after the victim is rendered unconscious, then the crime is aggravated assault by the defendant who knocked the defendant unconscious and theft by the defendant who stole the victim’s wallet. This scenario assumes that neither defendant intended to rob the victim.
Threats: A robbery may be committed by use of threats against the victim, even if the defendant never touches the victim.
For example, if the defendant threatens to kill the victim unless the victim gives the defendant her purse, and the victim simply hands her purse to the defendant, then robbery is committed even though the defendant never touched the victim. The threat itself must be a threat against the person, or the person’s family member, or another person presently in the victim’s presence. Also, the threat must be to commit imminent severe bodily injury or death against any of these persons.
For example, it is not the crime of robbery for the defendant to approach a victim and state “I’ll completely make fun of you if you don’t give me your wallet!” It is also not robbery to state to a victim “someday, but not today, I’m going to get you if you don’t give me your purse.”
Unlawful Taking: The definition of robbery includes the phrase “unlawful taking.” This means that some types of “taking” from a person are not unlawful. This includes taking personal property for self-defense or defense of others, and the immediate retaking of personal property from the person who took it from its rightful owner.
For example, if Goliath takes a stone from David because David threatens to sling the stone at Goliath without legal justification, then Goliath is justified in taking the stone from David, even by force if necessary. Similarly, if Goliath immediately retakes the stone from David because David unlawfully took the stone from Goliath, then Goliath has not committed robbery.
True Ownership of Property Not a Defense: It is not a defense to the crime of robbery to claim that the victim was not the true owner of the property stolen, so long as the defendant is not the true owner (see above).
For example, the defendant cannot rely on the fact that the victim was wearing a borrowed watch when the defendant robbed the victim of the watch.
Defenses Related to Robbery: Many of the defenses related to robbery are the same as they would be for burglary. These defenses include insufficient evidence to prove the crime, illegal search and seizure, mistake of facts, coerced confession, alibi defense, statute of limitations, entrapment, self-defense, defense of others, insanity, defendant not properly Mirandized, and more.
Sentencing: Both robbery and burglary crimes carry severe penalties, including long prison sentences for both robbery and residential burglary, possible probation sentences, collateral consequences with immigration status, military service, professional licensing, and more. For more information on the penalties associated with these crimes, see Robbery (PC 211), Commercial Burglary (PC 459), and Residential Burglary (PC 459/460).
Burglary Defined: Burglary is defined at the breaking, and entering, a building with the intent to commit theft or any felony therein. Basically, burglary is breaking and entering a building to commit a crime.
Note: In the old days, at “Common Law,” burglary was only committed against a residence at night. Today, burglary is breaking into any structure for the purpose of committing a crime in the structure, and it does not matter if the burglary happens at night or in the daytime.
Intent to Commit Theft of Felony Therein: Burglary is only committed if the defendant intended to commit a theft (misdemeanor or felony theft), or a non-theft felony inside the structure before she entered the structure.
For example, burglary is not committed when the defendant enters a structure only to get out of the rain. Of course, if you’re relying on a jury to believe this particular defense without any supporting evidence, then you have the wrong criminal defense attorney.
Breaking and Entering: To break and enter a structure means to enter any portion of the structure, no matter how slight, and even if the entering is only by an object, as opposed to a person. The “breaking” does not require that some object is broken.
For example, it is “breaking” when the defendant uses minimal force to push open a door that is already ajar; it is “entering” when the defendant uses a pole to steal an object through an open window, even if no part of the defendant ever enters the structure.
Structure: For purposes of burglary crimes, a structure includes a business, a residence, a vehicle, a hotel room, a room in a residence, a boat, an airplane, and the curtilage of a residence (the curtilage of a residence is the immediate surrounding areas of a residence, such as a detached garage or shed). Also, it does not matter if a person is inside the structure at the time of the burglary.
Theft of Felony Required: The crime of burglary requires the defendant’s intent to commit a theft or any felony inside the structure when she breaks into the structure.
For example, if the defendant’s intent is to snoop around in his girlfriend’s apartment while she is gone, then the defendant is not guilty of burglary. This is because the defendant does not intend to steal anything from his girlfriend’s apartment, and he does not intend to commit a felony once inside his girlfriend’s apartment. Of course, under this scenario, the defendant is likely guilty of stalking and just being creepy in general.
Note: The theft crime required for burglary can be a misdemeanor or felony theft. But any crime besides theft must be a felony in order to prove burglary charges.
For example, if the defendant intends to commit misdemeanor hazing when he sneaks into his Frat Brother's room, then burglary is not committed by the defendant.
Note: Many misdemeanor sex crimes would not qualify as the underlying crime that supports a burglary charge (intent to commit a felony therein). Therefore, many misdemeanor sex crimes are now elevated by statute to felony-level crimes when the offense is committed in a residence, such as felony indecent exposure in a residence (PC314.2-F), felony annoy or molest a minor in a residence (PC647.6(b)-F), etc.
Commercial v. Residential Burglary: Commercial burglary is the breaking, and entering into, a business, with the intent to commit theft, such as shoplifting, or a felony therein, such as stalking an ex-girlfriend. If the defendant’s intent is to commit shoplifting in the business when she enters, then the criminal charge is misdemeanor commercial burglary (California). If the defendant’s intent is to commit a felony when she enters the business, then the criminal charge is felony commercial burglary. Residential burglary is as it sounds…the entering of a residence with the intent to commit a theft or felony in the residence.
Note: A “residence” can be a house, boat, trailer, room within a house, hotel room, and more.
Also, residential burglary is considered a “strike” offense in California under California’s Three Strikes Sentencing Law. For more information on the penalties associated with Commercial Burglary or Residential Burglary, please visit PC 459, and PC 459/460, respectively.
Crime Complete Once Entered: If the defendant enters a building with the intent to commit theft or a felony therein, then the crime of burglary is complete as soon as she enters the building. If the defendant commits the target crimes once inside the building, then the defendant may be charged with both the burglary offense and the target crime offense.
For example, if the defendant enters a residence with the intent to commit child molestation against another person, but nobody is home when the defendant enters, then defendant is guilty of residential burglary as soon as he enters the home. This is true even though the defendant was mistaken about the child being home and he was not able to carry out his intended target crime. On the other hand, if the defendant commits child molestation after entering the home to commit the same, then defendant may be charged with both crimes of residential burglary and child molestation.
Note: If the intent to commit a crime formulates in the defendant’s mind after the defendant enters a structure, then the defendant has not committed burglary. Of course, the defendant may still be charged with the criminal offense that she committed in the structure.
For example, the defendant enters a house because he is invited to a house party, but after he enter the house, he decides to commit to have sex with an intoxicated female who is too intoxicated to object to defendant’s forced intercourse, then the defendant should not be charged with residential burglary, but he should be rape of an intoxicated victim (PC261(a)(3)-F).
Defense to Burglary: Most of the defenses associated with burglary crimes are similar to the defenses that apply to robbery crimes (see above).
For more information on the difference between robbery and burglary, contact our criminal defense attorney today for a free consultation. Our dedicated defense team of aggressive and award-winning attorney represent all persons charged with robbery crimes or burglary crimes in the cities of Fontana, Rancho Cucamonga, Victorville, Rialto, Redlands, San Bernardino, Yucaipa, Hesperia, Ontario, Chino, Adelanto, and more. Call today for a free consultation!
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