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Can You Avoid Prison If Charged with Residential Burglary?

Posted by Ronald D. Hedding, ESQ. | May 04, 2022

A common question we encounter in consultations with new clients is whether there is a way to avoid prison after they are charged with residential burglary under California Penal Code 459 PC. The crime of burglary is described as entering a residential or commercial structure intending to commit grand theft, petty larceny, or any other felony crime.

Can You Avoid Prison If Charged with Residential Burglary?

A burglary occurs when someone enters a structure with criminal intent, even if nothing was stolen. PC 459 burglary laws are divided into either first-degree or second-degree burglary.

First-degree burglary, commonly called residential burglary, is when someone enters a residence with criminal intent. A second-degree burglary includes any other structure, such as a business.  Penal Code 459 PC defines burglary as:

  • “Anyone who enters a house, apartment, warehouse, store, tent, vessel…, or other building intending to commit grand or petty larceny or other felony crimes, is guilty of burglary.”

Burglary is a “wobbler” in California that the prosecutor can charge as either a misdemeanor or felony. However, first-degree residential burglary is always a felony crime. The penalties include up to six years in a California state prison if convicted.

What is a First-Degree Residential Burglary?

First-degree burglary is usually a residential burglary involving entering into an inhabited dwelling designed for that purpose. Readers should note that this doesn't mean people must be at their homes when the burglary occurs. Instead, “inhabited” means people use the structure as a dwelling place. The term “residence” under the definition of a Penal Code 459 burglary includes any of the following areas:

What is a First-Degree Residential Burglary?
  • home,
  • room within a home,
  • guest house at somebody's home,
  • an apartment,
  • hotel or motel room,
  • recreational vehicle, and
  • boat.

As noted, PC 459 defines residential burglary as entering a non-commercial structure intending to commit a crime once inside. The perpetrator must have a plan to steal, or they stole, property exceeding $950. To be charged with a California first-degree burglary case, the structure must be considered a “residence,” such as a traditional home or apartment.

What Are Some Common Mistakes?

Burglary is a severe crime, especially if it's a residential burglary because that would be a strike, and if there were a person in the home when the burglary took place, that would be a violent felony. The person would face a strike and prison time at 85% of whatever sentence the particular job gave them.  Obviously, with burglary being such high stakes, you want to make sure there are no mistakes on your side, such as the following: 

  • The first mistake I see people making is not doing anything about the fact that they or their loved one was arrested for burglary.  The first thing you want to do is to hire an attorney – one that has experience.  Don't make the common mistake of burying your head in the sand, doing nothing, hoping for the best, and then getting horrific news when you or your loved one goes to court and finds out they're looking at multiple years in prison.
  • Another common mistake I see made is people trying to investigate their case. People trying to become lawyers suddenly and make moves in their cases when they don't know what they're doing.  They don't have the training, the skills, the background, or the experience.  Let your attorney do the talking for you.
  • Another mistake is talking to the police, which usually turns out the best evidence for the prosecutors. They now have a statement of the defendant who foolishly talked to the police, thought they could talk their way out, answered all of the police's questions and destroyed any chance of getting a not-guilty verdict.  Now we're in a position where we have to negotiate. 

So, don't make these common mistakes – and they all center around letting someone who knows what they're doing handle your burglary case. You don't want to get that strike on your record.  You don't want to go to prison.  If you ever want to see your loved one get out of custody again, get a lawyer who knows what they're doing.

What are the Penalties If Convicted?

If convicted of the felony offense of PC 459 first-degree residential burglary, the potential penalties include the following:

  • two, four, or six years in state prison,
  • a maximum fine of up to $10,000,
  • formal probation,
  • a “strike” under the three-strikes law.

Judges will not typically grant probation only in a first-degree burglary conviction, which means defendants usually face a state prison sentence followed by a period of supervised parole unless mitigating circumstances exist that would justify a lesser sentence.

Is It Even Possible to Avoid Prison If Convicted of Residential Burglary?

Yes. Residential burglary is a grave crime.  It is a strike.  It goes on your record if you're convicted and stays on your record for the rest of your life because of the California three strikes law.

Also, many people don't realize that even a first offense is a presumptive prison case.  That means that most of the time, the prosecutors and judges will try and send somebody charged with burglary of a residence to prison.

Avoid Prison If Convicted of Residential Burglary

They're assuming that person should be going to prison based on the severe nature of the charge. The biggest problem with burglary is that people enter another person's house. They usually have homes themselves, so they're putting themselves in the shoes of the person being burglarized, and prosecutors and judges are very harsh regarding these types of crimes.

The answer regarding whether or not you're going to prison is usually yes.  However, there is a caveat because if the defense can establish with the court that there are unusual circumstances related to a separate burglary charge, they can mount an argument that that person should get probation.

Also, if we find the person not guilty in a jury trial, that would be another way to avoid prison.  But suppose we can't get a not guilty verdict, and there is evidence that the person committed the burglary charge. In that case, we're going to have to try to show, very clearly, that we have a situation that these are unusual circumstances.  This can be shown in many different ways.

Real Residential Burglary Case Examples

I can give you one example where I've had a case where my client was charged with burglary but never entered the residence.  He allegedly used some prying tool that broke the house's plain as he tried to jam through a door.

The person was home, yelled, called the police, and then the burglar ran away.  The burglar threw down a glove on their hands, and the police could take fingerprints off that glove and match one of the fingerprints to my client. So, he was charged with residential burglary.  That's an excellent example of a questionable case where:

Criminal Defense Lawyer in California
  • he never gets inside the house, and
  • we were able to show that there were other fingerprints on that glove,
  • they had no other evidence, and
  • the witness did not identify my client as being there.

So, we were offered a non-prison deal.  I ultimately got the case dismissed at the preliminary hearing because case law talks about needing more than just that fingerprint to convict somebody of a burglary, so the judge dismissed the case.

But that gives you an example of what I'm talking about when we say unusual circumstances. There are other examples.  That's just one to give you a feel for the situations where we can mount that argument.

When somebody has no criminal record, they're young, or nobody was home at the time of the burglary, other factors can be used to make an unusual circumstances argument to keep the person out of prison. Additional arguments can be made, but we need to know the facts and circumstances of your case.

So, if you or a loved one is charged with residential burglary, you've come to the right place.  I worked for the district attorney's office early in my career.  I've also worked for a superior court judge and have been defending people like you since 1994 who are charged with residential burglary.

Pick up the phone now.  Call the Hedding Law Firm and ask for a meeting with Ron Hedding. The top-ranked criminal defense lawyer at the Hedding Law firm is based in Los Angeles County, and we offer a free case evaluation by phone or by filling out the contact form.

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About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.