Westminster Police arrested a 47-year-old man as he was attempting to break into a home while the residents were present. According to authorities, police officers responded to a 911 call of a man attempting to break into a home. The woman occupant advised that he was trying to get in through both the front and back doors. As officers arrived, they caught the suspect just inside the entryway of the home, still wearing gloves. He was arrested on suspicion of residential burglary. Authorities are also investigating whether this suspect may have been involved in other similar burglaries in the area.
First-degree burglary or residential burglary is serious not only because it is a felony, but also because it considered a “serious felony” under California’s Three Strikes Law and if convicted carries a mandatory prison sentence and a Strike. However, that being said, there are defenses to residential burglary and the prosecution does have the burden of proof.
In order for the prosecution to prove 1st Degree or Residential Burglary, it must be proven that the defendant intended to commit a crime or petty theft, once inside. Here are a few examples of intent:
If a person entered a residence, whether legally or not, and then once inside decided to commit a theft, it is not 1st degree burglary because the intent was formed after he entered the residence. Similarly, if a person is invited to a home, and once inside decides to commit a theft, it would not be considered 1st degree burglary because the intent was formed after they were inside.
However, take a situation where someone is in another’s home with permission, but knows that there is a piece of jewelry in the bedroom and decides to go into the bedroom to steal it. This can be charged as 1st degree burglary because they entered the bedroom with the intent to take the piece of jewelry. The same holds true if someone is invited to a home, and accepts the invitation because they plan on stealing something once inside. This can be charged as 1st degree burglary even though they were invited because; they intended to commit a theft once inside the home.
As you can see, it can get a bit tricky for the prosecution to prove intent. This is why the initial contact with the authorities is extremely important. When being questioned by police, the main focus of the investigating officers is to get the person to admit that they intended to commit the theft before they entered the dwelling, not after they were inside. They know that if the person arrested says that they decided to commit a theft after they entered the dwelling, then there is no intent and thus, no 1st degree burglary.
1st Degree Burglary vs. Second Degree Burglary. What is the difference?
First-degree burglary, also known as residential burglary is always filed as a felony. Simply put, it is the entering of any dwelling where someone lives. Second-degree burglary can be filed as either a misdemeanor or a felony and usually involves entering a commercial building.
Anyone who is facing a serious felony with the potential for a strike needs the advice and assistance of an aggressive, experienced criminal defense lawyer who is familiar with all of the defenses and requirements that go along with such a charge. Paying close attention to police conduct or misconduct at the time of the arrest and collection of evidence at the crime scene is extremely important. If proper procedures were not followed or if the suspect’s constitutional rights were in any way violated, a defense attorney may be successful in getting the case dismissed. In the absence of a dismissal, taking the case apart and finding holes in the police reports or prosecutions case may provide the attorney with enough to get the case reduced to a misdemeanor and thereby, avoiding a strike.
If you would like to know more about residential burglary, contact Orange County Criminal Defense Lawyer William Weinberg at his Irvine, CA office at 949-474-8008.