Orange County Criminal Defense Lawyer Blog

Residential burglary occurs when someone enters the residence of another with the intent to steal or commit a felony inside the home. The "normal" burglary is one where the burglar enters the home by forcing some kind of entry. Entry into the home through a window or forcing a door open are both entries which establish, almost by common sense, the intent to commit a theft or some kind of a felony inside the house. These are "serious" crimes and are punishable under the "Three Strikes Law" as such. But, what happens when someone is home when the burglary happens?

Recently, a case came up where entry was made through a bedroom window. Once inside the burglar was in the process of stealing silverware from the kitchen when he decided maybe there were more valuable items to be found in the bedroom. When the burglar went into the bedroom he was shocked to find that a woman was in bed sleeping. He immediately left the home and was so shocked he didn't even take the stolen loot with him. Does the fact that he didn't know anyone was home make a difference? Add the fact that he left immediately and didn't take anything with him and maybe the burglary didn't even occur. Well, unfortunately for the burglar, the fact that he didn't know someone was home and that he didn't get any stolen property doesn't make any difference at all.

The crime of burglary is established as soon as the burglar enters the home with the intent to steal. Even if he just walked in the front door, if he entered with the intent to steal, it's a burglary. The big problem for the burglar who enters when someone is home, is that by definition it is a "violent" crime under the "Three Strikes Law". When it comes to sentencing, the burglar must, except in unusual circumstances, go to State Prison. In addition, if he does go to State Prison he must serve 85% of whatever sentence he receives.

The public policy behind theses increased penalties is that when someone is home, the danger factor increases so much that even if no one is hurt, or the homeowner doesn't even know the burglary happened, it is so dangerous that increased punishment is mandatory.

Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was "How To Defend A First Time DUI". Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn't necessarily shared by the lawyers in the class because they don't have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What's a good settlement?

The hardest issue for the lawyer teaching other lawyers is to make the class interesting and informative. Maybe that's the challenge for every teacher. But, lawyers being who they are, become a critical crowd and one that already feels they know what they are doing, even when they don't. However, I guess the crowd of lawyers liked the "inside" knowledge and tips I gave them because they asked me back.