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Secrets to Defending a Burglary Case

Posted by Ronald D. Hedding | Jun 07, 2024

Those charged with burglary are looking for ways to resolve their cases. I've been doing this for over 30 years and wanted to share some of my secrets.

First, you must assess whether you're dealing with a first-or second-degree burglary. A second-degree burglary involves breaking into a closed store or other structure and stealing somebody's property.

Second-degree burglary involves entering, intending to steal, taking the property, and leaving. It's not a strike but a serious offense that can be charged as a felony or a misdemeanor.

First-degree burglary involves entering somebody else's residence. That's a strike. It's a serious felony. If someone is present when you do this, it's a violent felony. Any conviction, jail, or prison time will be served at 85%.

What is "Intent to Steal?"

So, when we assess these cases, I typically look at a couple of things. No. 1, regarding California Penal Code 459 PC second-degree burglary, sometimes the prosecutors have problems proving intent to steal at the time.

For example, somebody goes into an open store, which might be Penal Code 459.5 PC shopping. They see something they like. They don't have the money, so they decide to take it.

That scenario would not be a burglary because the person entered the store without intending to steal. They didn't get the intent to steal until once they were inside, so that would probably be more of a petty theft, depending on the value of the property. If it's over $950, it can be charged as a felony. It would probably be charged as a misdemeanor if it's under that amount.

Can Prosecutors Prove an Intent to Steal?

Regarding first-degree burglary (Penal Code 460 PC), which I usually encounter when people are in trouble, you want to get an experienced attorney and let that attorney work for you.

You have to decide, no. 1, whether or not you have a defense to the case. That would be trick/secret #1, which would be going to trial and getting a not-guilty verdict, and then you don't have the burglary to deal with anymore. Of course, not everybody can do that. You have to see whether the prosecutors can prove that:

  • You entered another person's dwelling house and
  • You had the intent to commit a felony inside.

Sometimes, there's an angle there. Sometimes, people enter the house without the intent to commit a felony or steal.

They enter the house for some other reason. Maybe they made a mistake-they got the wrong house. Perhaps they were drunk and wandered into a home.

There could be various reasons why people enter another person's house. But if it's not with the intent to commit a felony when they join, it can't be a first-degree burglary, and that's one way to get out of that particular charge.

Do Prosecutors Have Enough Evidence?

Another way would be if it's a who-dun-it case. In other words, the district attorney (prosecutor) may not have proof that you went there. Consider the following:

  • Do they have a video of you?
  • Do they have witnesses?
  • Do they have fingerprints?
  • Do they have DNA?

That sometimes is a defense in these burglary cases.

Is it Possible to Get a Reduced Charge?

If they've got you going into the house and they've got you stealing and they can prove the burglary case, then what we're going to want to do is another secret, such as the following:

  • Prove that this is a unique case and you should not be convicted of a burglary.
  • Try to get some offense other than a burglary that's not a strike, which we can reduce to a misdemeanor and get dismissed from your record.
  • Prove to the DA you shouldn't have to go to state prison.

So, we have to look at the facts and circumstances surrounding your case to see if we can make a good argument that this is not the type of burglary for which you should be convicted.

What are The Best Defenses Against Burglary Charges?

We need to find unusual circumstances. I can give examples of the cases I've handled for over 30 years, such as the following:

  • First, you have no criminal record, which would be an excellent example of an unusual scenario. Most people who burglarize other people's homes have done it before. 
  • Another thing we like to do is put together what's called a mitigation package, where we put together letters of support and character for you, show that you have a job, and give the prosecutor and judge something positive about you versus this negative stereotype they're going to have against you because you've been arrested and are being charged with burglary.
  • Another angle might be that we give all of the property back. Maybe they captured everything when you were arrested. That would be helpful. If we can't return all of the property, we may be able to pay restitution upfront to try to avoid that burglary conviction.
  • The last thing we can do is take the case to trial and get a not-guilty verdict. That's another way to do it. Of course, we've got to have the facts and circumstances to be able to do that.

If you or a loved one is charged with first or second-degree burglary, you need the best because you're facing a felony, prison time, a strike, and many other consequences. Pick up the phone now and ask for a meeting with Ron Hedding. I stand ready to help you.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.