Hedding Law Firm

Can You Avoid Prison If Charged with Residential Burglary?

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 with the intent 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 a 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 with the intent 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. If convicted, the penalties include up to six years in a California state prison.

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 places: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 with the intent to commit a crime once inside. The perpetrator must have intent to steal, or they stole, property exceeding the value of $950. To be charged with a California first-degree burglary case, the structure must be considered a “residence,” such as the traditional homes or apartments.

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 it 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 the prosecutors and judges, most of the time, 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 they’re having with burglary is that people are going into another person’s house. They usually have homes themselves, so they’re putting themselves in the shoes of the person who is being burglarized, and prosecutors and judges are very harsh when it comes to these types of crimes.

The answer as far as 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 can 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.

Do You Have Any 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 were able to 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 was not identifying my client as being there.

So, we were offered a non-prison deal.  I was ultimately able to get the case dismissed at the preliminary hearing because case law talks about they need 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 provide you with a feel for the situations in that we can try to mount that argument.

When somebody has no criminal record, they’re young; 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 I’ve been defending people just 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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Named Top Los Angeles Criminal Attorney by LA Times and named one of the Top 100 criminal defense attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.

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