Residential Burglary — Penal Code 459, 460(a)

Being charged with Residential Burglary is an extremely serious matter. Many, if not most, people charged with the residential burglary end up being convicted of a crime and sentenced to state prison. The only smart way to defend one’s self from residential burglary allegations is to retain the services of a smart criminal defense lawyer.

Burglary is committed when a person enters a structure or specified enclosure with the intent to commit theft or any other felony.[1]  If the Burglary takes place in a structure that is inhabited, lived in or used as a residence it is considered a Residential Burglary, also known as first degree burglary.  If the structure is not inhabited, it is Commercial Burglary.

What does the prosecutor have to prove to convict me of Residential Burglary?

The prosecutors must prove that:

1)   You entered a building/room/vehicle

2)   When you entered you intended to commit theft or another felony[2]

The prosecutor must prove that you entered a structure. Entering a structure is considered passing any part of your body (or instrument under your control) through the outer boundary of the structure. The outer boundary includes window screens.[3] Using a crow bar to open a trailer door with the intent to steal the contents inside, is burglary.

Some common places considered structures include houses, apartments, mobile homes, camper, trailer, a rented room, cars and boats.[4] The prosecutor will have to prove that at the time of the act the structure was inhabited and that the residents intended to continue dwelling there.[5]

Intent is a difficult position to prove. To prove intent, prosecutors may use evidence such as burglary tools on your person or in your control (i.e. in a backpack or in your car) or bags with concealed areas. Remember that when the decision was made to commit the act is crucial in a burglary charge.  If you did not decide to commit a crime until after entering the structure, then you did not commit Resident Burglary.

You do not have to actually successfully gotten away from the scene with the stolen items to be charged with burglary. If a person gets caught in a home while trying to steal a piece of art, he could be charged with burglary.

We have all heard the phrase “breaking and entering” and related it to burglary. However, you can commit Resident Burglary without “breaking” anything or forcing your way into a property. For example, instead of breaking a window to get into a house, if you simply open an unlocked window and climb in, with the intent to steal or commit some other felony, you committed Residential Burglary.

How do I fight Residential Burglary allegations?

Do not speak with anyone about the allegations except your lawyer.  This includes law enforcement officers, of course, but also your friends, neighbors, and even family members.  Everything you say can and will be used against you.  Make sure you hire a lawyer who will make every effort to avoid your being prosecuted or convicted.  For more advice on how to pick the right lawyer for you, read our free ebook Fighting Your Criminal Case.

What is the sentence for first degree Burglary?

A conviction of first degree Burglary is always a felony.  Such a conviction would get you a sentence of two, four or six years in prison and a fine of not more than $10,000.[6]

First degree burglary is considered a “serious felony” and a conviction counts as a strike under California’s Three Strikes law.[7]

Additions:

  • If you tried to break open a safe or vault or other secure location by using explosives or torches, your felony sentence in a state prison would be increased to 3, 5 or 7 years.[8]
  • If you caused “great bodily injury” to another person while committing the crime, you could face an additional 3-6 years in state prison, depending on the nature of the injury and victim.[9]
  • If you knew the victim to be 1) over 65 or under 14 years, 2) blind or deaf, 3) developmentally disabled and/or 4) paraplegic or quadriplegic, then your prison sentence could be increased by 1-2 consecutive years.[10]

Probation: According to California Penal Code §462 the judge may not issue a probation sentence unless they consider your case to be “unusual…where the interests in justice would be best served by doing so.”[11] Examples of  circumstances where a judges may consider probation sufficient justice would be 1) the circumstances of the crime were less serious than ‘typical’ burglaries 2) you were provoked or coerced to commit the crime and would not have done so normally 3)you have a mental health condition that the judge ordered treatment for.[12] Example of reasons a judge would not consider probation are 1) if a weapon was used in the crime, 2) the circumstances of the crime show a high level of sophistication or 3) if you took advantage of a position of confidence or trust to commit the burglary.[13]

Prior Violent Felony Prison Sentences: If another person (not an accomplice) is proved to be in the residence when the burglary occurred, your first degree Burglary charge could be alleged as a Violent Felony strike.[14] This means that if you have prior Violent Felony convictions for which you were committed to state prison, you would now be sentenced to serve an additional 3 years for every such prior case.[15] If you have been free from prison for the last ten years, this does not apply.[16]

Prior Felony Prison sentences: If you are convicted of felony Residential Burglary and you are given a state prison sentence, you will get an additional and consecutive 1 year commitment for each prior felony conviction you have had which resulted in a prison sentence. However, if you have remained free from prison for the last 5 years, this does not apply.[17]

Turn to Lounbery Law Office to attack your charges vigorously, investigate all defenses available to you, and give you sound and sage advice. We are upfront with our clients. We give honest and frank assessments of the evidence and direct your case so as to strengthen it and reinforce our arguments. We believe our clients and go to the mat fighting their cases.

Speak with El Cajon residential burglary attorney Tate R. Lounsbery today. We will take all the time you need to explain what steps we need to take to move forward defending your case. We will answer all your questions and be your strongest advocate. Call us at 619-792-1451 or send us an email.


[1] California Penal Code § 459

[2] California Jury Instructions (CALCRIM) 1700

[3] California Jury Instructions (CALCRIM) 1700

[4] California Penal Code § 459

[5] California Jury Instructions (CALCRIM) 1701

[6] California Penal Code § 461(a)

[7] California Penal Code § 1192.7(c)(18)

[8] California Penal Code §464

[9] California Penal Code §12022.7

[10] California Penal Code § 667.9

[11] California Penal Code § 462

[12] California Rules of court 4.413

[13] California Rules of Court 4.414

[14] California Penal Code § 667.5(c)(21)

[15] California Penal Code § 667.5(a)

[16] California Penal Code § 667.5(a)

[17] California Penal Code  § 667.5(b)