What Should You Do If Accused of Burglary?

Posted by Ronald D. HeddingSep 18, 2019

The crime of burglary in Los Angeles is a real problem. It brings a lot of negative connotations — meaning people who are convicted of burglary are viewed as individuals who can't be trusted because they steal other people's properties. California Penal Code 459 defines the crime of burglary.

But also brings with it — if it's a residential burglary — a strike in California. This means you will have a felony on your record for the rest of your life. Then you put yourself in the position where you've got a strike on your record, it's a felony on your paper, you can't own, use or possess a weapon, and you can't vote.

And in addition to things that go on your record, you're also looking at a situation where you could be sent to prison for an extended period. If there's a person present when the burglary occurs, that makes the crime a violent felony which means that you would serve 85% of any time you get on the case.

So, when you're talking about burglary charges, you need to get an experienced criminal defense attorney as soon as possible because a lot of these burglary charges can be over-filled by the prosecutors, and sometimes they're not over-filed.

Maybe the person did commit a burglary, but because of the person's lack of criminal record, their young age, and a host of other good factors — if there could be good factors in a burglary, prosecutors — can be used to try to differentiate you as a person from other individuals who commit residential burglaries and try to avoid a prison sentence and try to avoid some of the additional negative stigma and punishment that comes along with a burglary charge. Our Los Angeles criminal defense lawyers will examine this topic in more detail below.

Residential vs. Commercial Burglary in California

Now, there are multiple levels of burglary.  There's a commercial burglary which would be characterized as second-degree burglary.  You were walking along, and you broke into somebody's car.  You take the person's stereo and other property; that's a second-degree burglary.  That's not a residential burglary. That's not a strike.

Burglary Charges in California Penal Code 459

It's still serious, but it's one of those situations where you can get something like that reduced down to a misdemeanor.  If you do well on probation, you could call it dismissed off your record.  You're not as likely to go to prison, depending on your history and other factors.

There are other scenarios where people are breaking into non-residences.  The residence is the problem because once you commit burglary and go into somebody's castle, so to speak, that's when the judge and prosecutors will come down hard on you. The law and the legislature are set up to get people involved in going into other people's homes.

Of course, that's for a variety of reasons.  Number one, it's hazardous when you go into someone's home.  People and children are in there.  People have guns in their homes, so there's a lot more likelihood of violence or death if you go into somebody else's home.

A home is a sanctuary.  It's a castle, and people feel violated when another individual goes into their home, and the legislature recognizes that and punishes for that.  Judges and prosecutors all have homes.  They all put themselves, whether they admit it or not, into the victim's shoes in a residential burglary case.

So, if you have a first-degree residential burglary case, that brings a whole host of problems.  I've already mentioned the person-present issue, but just the fact that you're going into somebody's home will create a felony on your record.

You will not be able to get the felony off your record because there's no such thing as a misdemeanor residential burglary.  It's a straight felony.  You'll never be able to own, use or possess a weapon.  You'll never be able to vote in the United States, and there are many other problems.

That conviction will stay on your record, so anybody who does a life scan on you if you're trying to get a job is going to see that.  So, when you get a burglary case, all of the marbles are on the line, so you should get in front of an attorney like me who's been doing this for twenty-five years.

We'll sit down and lay out all the facts, and let me design the plan that does damage control and does everything possible to keep you out of prison and protect those valuable rights you have — your reputation and everything you hold dear.

How to Defend a Burglary Case?

There are different charges of California Penal Code 459 PC burglary.  One can be what is called a commercial burglary.  For example, if you break into a store or somebody's car and steal their property, I'd characterize that in California as second-degree burglary.

First-degree burglary, and what I want to talk about how to defend, is residential burglary.  That's when you go into somebody's house – either the person is home, or they're not. 

If somebody is home, they consider it a violent felony, a strike, and you serve 85% of the time.  If somebody is not home, you can get 50% credit for any jail or prison time that you end up doing in the case.

Elements of the Crime

As far as defending these cases, first and foremost, the prosecutors have to prove that somehow, you went into somebody's house.  We often see situations where somebody doesn't get into the house, and then you're dealing with the issue of whether there was a breaking.  In other words:

  • Did a part of the person's body go into the house?
  • Did some tool go into the house to satisfy the breaking element?
  • Did somebody go to the location intending to commit a felony?

The felony is usually burglarizing the home, but it could be rape, it could be arson, and a host of other felony-related offenses. But if it is a misdemeanor, that would be one way to defend the crime because you're not trying to get in there to commit an actual felony, and therefore, it's not a burglary. 

We're trying to defend these burglary cases because they're typically strikes, and you're typically looking at prison time.  So, why would you want to have a conviction for that?

Fighting the Case or Negotiating with the Prosecutor?

The first thing you have to decide is whether or not you can defend the case or whether it's a situation where your attorney is trying to mitigate the case, get a lesser charge, or keep you out of jail or prison. What I have you do is come in.  We sit down and go over all of the facts and details.  I encourage you to be honest about what happened and:

  • I'm also going to have to look at the police report to see what the police are claiming happened;
  • What evidence do they have?
  • What witnesses do they have?

Then, we can get down to the nitty-gritty and decide whether or not the burglary case can be proved against you. If the decision is made that it can be proved against you, then we need to try to mitigate it. 

We're going to get character letters from friends, family, and people who know you to try and paint a solid picture of you that the prosecutors will consider in either deciding to give you a lesser charge than a burglary or also having you be able to keep out of custody because obviously, nobody wants to go into custody.

Once we have decided whether we're going to fight the case or whether we're going to mitigate the issue, then we'll take the next step. 

Filing Motions and Trial Preparation

If we decide to fight the case, for example, we will investigate and file whatever motions make sense for you in your particular circumstances, and we will try to get the case knocked out before it even goes to trial. 

If it ends up going to trial, then obviously, we're going to aim at trying to convince the jury that you're not guilty. Each burglary case turns on its facts, so we have to look at what evidence the prosecutor has that supposedly proves the case against you.

I remember I had a case where all they had was my client's fingerprint on the inside of a glove related to somebody who tried to open a door, and they didn't realize the resident was inside, and the person yelled, and the would-be burglar ran away. 

I got that case dismissed at the preliminary hearing because they only had that fingerprint.  They really couldn't prove that number one; my client was the one who tried to get into the house, and number two, there's case law that says that that fingerprint is not enough. So they're going to need more evidence than just that.

So, the bottom line is, if you need the best, you've come to the right place. So, pick up the phone now.  Ask for a meeting with Ron Hedding.  Let me put my years of experience to work for you.