What is Burglary in the Second Degree in Arizona?

A.R.S. §13-1507 is the Arizona statute that defines burglary in the second degree. This also known as “breaking and entering” into a home, or “home invasion.” The is specific type of burglary occurs when a person “enters or remains unlawfully” in a residential structure with the intent to commit a theft or other felony.

Burglary in Arizona is divided into first– second- and third-degree burglary. This article discussed second degree burglary. This type of crime is distinguished from the other types of Arizona burglary laws because it occurs in a home but it does not involve the use of a deadly weapon.

A.R.S. § 13-1507 Defined

Under Arizona’s theft laws, a person commits burglary in the second degree by

  • entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.

Burglary in the second degree is a class 3 felony. This is one of the most serious types of felony offenses in Arizona.

Important Definitions for Arizona’s Burglary Laws

Burglary has some specific definitions that are defined by Arizona law. The legal specifics of these definitions can decide whether a structure is “residential” or “non-residential” and therefore can have an impact on how the crime is charged.

  • Structure: Any device that accepts electronic or physical currency and that is used to conduct commercial transactions, any vending machine or any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.
  • Residential Structure: Any structure, movable or immovable, permanent or temporary, that is adapted for both human residence and lodging whether occupied or not.
  • “Enter or Remain Unlawfully”: An act of a person who enters or remains on premises when the person’s intent for so entering or remaining is not licensed, authorized or otherwise privileged except when the entry is to commit theft of merchandise displayed for sale during normal business hours, when the premises are open to the public and when the person does not enter any unauthorized areas of the premises.
  • Entry: The intrusion of any part of any instrument or any part of a person’s body inside the external boundaries of a structure or unit of real property.

Penalties for Burglary in Second First Degree

The potential penalties for second-degree burglary depend on the number of prior convictions that the defendant has.

For a class 3 felony, the penalties are:

  • No priors: Probation eligible, or 2 to 8.75 years in prison
  • One felony prior: 3.25 to 16.25 years in prison
  • Two or more felony priors: 7.5 to 25 years in prison

Defenses to Burglary in the Second Degree

  • No “Intent”: Burglary in the second degree requires a person to not just enter the home, but to do so with a specific intent: namely, to commit a theft or felony. Even if the state is able to prove that a defendant was caught in another person’s residence, the state may not be able to prove the reason for the unlawful entry. Without such proof, the state can only show that defendant committed the lesser included offense of trespass in the first degree, which is a substantially lower charge than burglary.

Example: An intoxicated person is unaware of his surroundings and enters an unlocked apartment that he mistakes for his own and then passes out on the living room couch. The resident is justifiably frightened by the intruder and calls the police. Even though the prosecution can show unlawful entry, that is not enough by itself to show an intent to commit a crime.

  • Not a “Residential Structure”: There can also be some question as to whether a building constitutes a “residential structure.” A residential structure must be “adapted for human lodging.” But Arizona case law in State v. Bassheld that an unfinished log cabin was not a residential structure. Therefore, if the building burglarized was an unfinished home, it may be argued that the structure does not qualify as “residential.” Likewise, while an abandoned house that nobody is living in does not necessarily become “non-residential” simply because it is vacant, it may be so dilapidated and run-down that it is no longer fit for habitation.

How Salwin Law Can Help You

If you’ve been charged with burglary in the second degree, a skilled criminal defense attorney at the Salwin Law Group can help you with your case today. Stewart Salwin provides free consultations on criminal charges. Call today to see how we can help you get the best possible defense to your charges.

Call Salwin Law Group PLLC today at (480) 702-1789, or contact us online to make your appointment.