Actual Case #1
In People v. Keith R., - Case No VA134936-02 & VA138472-02, my client hired me after his first preliminary hearing in the Case ending in 936. At that time there were 3 defendants on the case all of which were accused of Burglary with a Gang Allegation alleging that the crime was committed for the furtherance, benefit and/or at the direction of a criminal street gang. I took at look at the Preliminary Hearing transcript and as I read through it, I thought the gang allegation was weak. In other words, it was my impression that the Deputy D.A. who conducted the preliminary hearing did a legally insufficient job proving up the enhancement and that the Judge therefore should NOT have held my client to answer for the Gang Enhancement. Soon thereafter, I filed a motion to dismiss pursuant to Penal Code section 995 for the Judge in the now Trial Court to rule on the evidence as presented in the Preliminary Hearing to see if she agreed with me that the Deputy D.A. did not meet their burden of proof thus requiring the allegation to be dismissed shaving five (5) years off the potential sentence. Keep in mind that there were 3 other attorneys on this case as there were 3 defendants all charged in the same original case and NONE of the other attorneys saw that the Gang allegation was weak as proven by the Deputy D.A. at the Preliminary Hearing. So the Judge at the Trial Court agrees with me that the Gang allegation was NOT proven up and she dismissed the Gang enhancement.
The offer to settle this case for my client who was defendant #2, and for defendant #3, was 9 years State Prison because they each suffered a Prior Strike and they had each been to prison in the prior 5 years. The offer to settle for defendant #1 was 2 years State Prison as he had no Strike Prior and a minimal criminal record. So right when the Judge dismissed the Gang allegation defendant #1 took a time served deal and was released within 24 hours. The Deputy D.A., instead of reducing the offer to settle the case from 9 years to say 7 years for my client and defendant #3, decided to dismiss that case and re-file it under the new case number ending in 472 and UP THE OFFER to settle to 13 years State Prison!! She did this so the D.A.'s office could get a different Inglewood Police Dept. Officer who was a self proclaimed "gang expert" to testify for the new Preliminary Hearing so that ALL the charges and Allegations would stick. (This would come back to bite the D.A. on her ass later so read on). Defendant #3, upon hearing that the D.A. was dismissing the case and re-filing, left the courtroom never to return as a bench warrant is likely still outstanding for him. So, the case proceeded to trial with my client as the sole defendant.
The facts were simple: my client and his alleged gang member friends were to have conducted a "knock knock" burglary where they went to the City of Lakewood in broad daylight and knocked on a door of a home belonging to a woman who just happened to work for the Norwalk D.A.'s Office. Since no one was home, one guy stayed in the car, while my client and defendant #1 went around back and allegedly broke a rear window, ransacked the home, and were just about to steal an I Pad and I Phone when the ghetto bird was dispatched and hovering over the home due to the woman across the street who had witnessed everything and called 911 while the crime was in progress. My client and his buddy fled the home, and were kept in constant surveillance until they were arrested only blocks away. My client was found with a window punch on him. The window to the home was broken with a window punch type object. The next door neighbor testified in trial that my client was the person who was seeing hopping the backyard fence of the burglarized home just after the police helicopter was overhead.
My client was looking at 24 years in State Prison. Accomplice liability was all over this case. The jury hung 9-3 in favor of Not Guilty. A mistrial was declared. The Judge was just about to set the case for a re-Trial when I informed the Judge of what the D.A. did in terms of dismissing and then re-filing because they got their panties in a bind when the other Judge dismissed the first Gang enhancement. I invited the Judge to take a good luck at the Court file in front of him and notice the two different case numbers. The Trial Judge looked at his file, then turned to the D.A. and told the Trial D.A. "seeing how you couldn't even get 6 jurors to vote for Guilt, I am Dismissing this case." My client was released within 4 hours and was on a plane that evening to the East Coast where he woke up the next day in Manhattan to 900 thread count sheets, organic chocolate milk and cinnamon rolls after spending over a year and a half fighting his cases in Los Angeles County Jail.
What Is Burglary?
Section 459 of the California Penal Code defines "burglary" as entering the building, room, or locked vehicle of another with intent to commit a felonious act or a petty theft. It is not necessary that a perpetrator forced his way into the structure for it to count as an act of burglary, except in the case of auto burglary, which requires the element of break-in. Burglary can be charged as either a felony or a misdemeanor, depending primarily on the type of structure entered.
Examples of burglary would include the following:
- Entering someone else's private home with the intention of committing felony-level assault and battery.
- Entering a retail outlet while intending to steal valuable jewelry stored inside.
- Breaking the lock of a car door and entering the vehicle to search for and steal any valuable items that might be kept in the car's glove box.
If a residential building is entered with intent to steal and/or commit other crimes once inside, it is an act of residential burglary. Residential burglary is always a felony and is typically a "strike" on one's record in regard to California's "Three Strikes and You're Out" legislation. The fact that this form of burglary is a strike-able offense means that severe consequences can result from any future felony convictions, such as a doubling of prison terms sentenced.
If a commercial building is entered with intent to steal and/or commit other crimes, an act of commercial burglary has occurred. Depending on the circumstances of the case and the defendant's past criminal record, this charge can be filed as either a misdemeanor or a felony. Perhaps unexpectedly, it is true that a shoplifter can be additionally charged with burglary. For example, if the perpetrator shows evidence of having preplanned the shoplifting such as being caught with tools or an empty bag they intended to use to commit the crime, it is both shoplifting and commercial burglary.
What Must the Prosecution Prove?
There are only two basic elements that the prosecution must prove to establish allegations of burglary: a) that the defendant entered a building, room, or a locked vehicle not belonging to him/her; b) that the defendant, at the time of this entrance, intended to commit a theft or a felony once inside. It is not, however, always easy for the prosecutor to establish these two points. Using a top-tier criminal defense attorney will make it even more challenging for the prosecution to successfully convict you.
Defense Strategies Against Burglary Allegations
Four of the most common defense strategies used to defeat allegations of burglary are as follows:
- Mistaken Identity: Given that burglars are generally quite careful to conceal their identity by using a mask, keeping their faces turned away, or by lurking in dimly lit locations, it is relatively easy for a witness to mistakenly identify an innocent person as the perpetrator.
- Lack of Criminal Intent: Though the defendant did, in fact, enter the structure in question, he/she did not do so with any intention of stealing or committing a felony.
- Reclamation of Property: In some cases, the defendant may have entered a building or car for the purpose of recovering his own property. This cannot count as burglary since the property the defendant intended to take was rightfully his.
- Insufficient Evidence: The quantity and nature of existing evidence simply falls short of proving beyond reasonable doubt that the defendant committed the act of burglary.
Possible Punishments for Burglary
Burglary can be punished as "1st degree," which means that it was an act of residential burglary. This crime is nearly always a felony, which carries a punishment of up to 6 years in state prison and a maximum fine of $10,000. It also counts as a "strike" on one's record.
If a business or office building was burglarized, it is "2nd degree" or commercial burglary. This crime is a "wobbler" that will be filed as felony or misdemeanor based on the particular circumstances and the perpetrator's past criminal history. The punishment is a maximum of one year in the county jail for a misdemeanor and up to 3 years in state prison for a felony.
Under penal code section 667.5, a prior felony conviction will result in an enhanced sentence for those convicted of burglary. If a felony burglary conviction is in your past, whether commercial or residential, and you again are convicted of burglary, an extra year in state prison will be added to your sentence for each prior felony.
If someone was present in the building at the time you committed residential burglary, it is considered an act of "violent burglary." If you have violent burglary convictions in your past, and you again are convicted of violent burglary, 3 extra years in state prison can be added to your sentence for each prior violent burglary conviction.
Other crimes often closely connected with acts of burglary include the following:
1. Theft: Willfully and illegally taking the property of another without his/her consent and with intention to deprive him of it permanently or for an extended period of time is theft. Theft falls into two main classifications: grand and petty.
If the property stolen was worth $950 or less, it is petty theft, which is nearly always filed as a misdemeanor. A first-time offense carries a maximum fine of $1,000 and up to 6 months in the county jail. Many times, a good defense attorney can reduce the jail sentence to probation, however, and can reduce a theft of $50 or less to a mere infraction. An infraction does not create a criminal record.
Grand theft occurs under the following conditions:
- Property worth $950 or more was taken.
- The property, regardless of the amount, was taken directly off of the person of the victim. If taken from the victim's body, from his clothing, or from a container he/she was carrying or holding, it was taken "from his/her person."
- The property taken was an automobile, firearm, horse, or $250 or more of fish, shellfish, aqua-culture, nuts, or fruits (if taken directly from a fishery or research facility).
2. Robbery: California defines "robbery" as taking the property of another from his/her immediate person and/or in his/her immediate presence by force or intimidation. Robbery is a felony that carries a sentence of 2 to 5 years in state prison.
It is very possible to be charged with both burglary and robbery in some situations. For example, if you entered the building or automobile of another, and once inside, used force or fear tactics to take property directly from the person of the victim, it is both burglary and robbery. It is also required, however, that intention existed to do the robbery before entering the premises.
Experienced Burglary Defense Lawyers
If you have been accused of burglary in Los Angeles, regardless of the type of burglary involved, we at the Law Offices of Jeff Voll have extensive experience and legal knowledge that we can put to work for you.
Many of our burglary defense attorneys are former prosecutors who understand the thought patterns of the prosecution and are highly skilled at countering them. Other members of our legal team, such as legal niche experts, investigators, and researchers, will also contribute to gaining the best possible outcome for each client.
Do not hesitate to contact us today at 323-467-6400 for a free and fully confidential legal consultation and immediate and continued attention to your case.