Residential Burglary Laws in California

Residential burglary as defined by the law, is committed when a person enters a residence, where people are present, without the permission of the residents and with the intent to commit a theft or felony once inside. Residential burglary is First Degree Burglary, a felony and a Strike under California’s “Three Strikes” law, which means that if convicted, you would have to serve 80% of the sentence (85% if a person was home at the time).

There are two types of burglary under California law, First degree and second-degree burglary. First-degree burglary is always a felony and a strike. Second-degree burglary is not a strike and can be filed as either a misdemeanor or a felony. The sentencing range for first-degree burglary in California, including Orange County, is 2,4 or 6 years in state prison. It is also presumptive that if convicted of first-degree burglary you will not get probation and state prison should be imposed. Having a strike on your record has severe consequences if future felonies are committed. California law states that if another felony is committed by a person with one strike, the potential sentence can be doubled.

The Prosecution’s burden of proof in a first-degree burglary case is to prove that when entering the residence, the defendant had the intent to steal something or to commit a felony once inside. It only has to be proven that there was an intent to steal, not that there was actually something stolen. So, if the prosecution cannot prove that the defendant entered the residence with the specific intent to steal or commit another felony, then the charges can be substantially reduced. Also, if the intent was to commit a misdemeanor, not theft, then this gives the defense good grounds to dismiss the burglary charges or have the reduced substantially. If however, the state is able to prove intent, a good burglary defense attorney might look at the another avenue to avoid a more serious punishment. An accused person must show remorse and be able to pay back the victim(s). This could possibly result in a reduced sentence.

A skilled California Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. Some of the defenses a good criminal defense attorney might use are: 1) Lack of intent; 5) Insufficient evidence; and 6) Misconduct or failure to follow proper procedure by the law enforcement agency.

Residential Burglary in Orange County is taken very seriously by the District Attorneys Office and the consequences of a conviction has serious and long lasting effects on a person’s life. It is therefore extremely important that anyone who has been arrested and/or charged for Residential Burglary or First Degree Burglary immediately seek the advice of an experienced criminal defense attorney, specializing in burglary cases. It is likewise very important to choose an attorney who is familiar with the Court in which the case is or will be heard. An attorney who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

If you would like to know more about 1st Degree Burglary or Residential Burglary, contact Orange County Criminal Defense Attorney William M. Weinberg at his Irvine, California office at 949-474-8008 or at