Articles Posted in Burglary

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When someone gets invited into a home, can he be charged with burglary if he commits a crime in the house? To commit a residential burglary you have to enter a home with the intent to commit theft inside or a felony of some kind.  In the recent case of People v Garcia, decided on November 14, 2017, the court confirms that you can be convicted of a burglary even if you were invited into the house.


Mr. Garcia was invited to spend the night in his sister-in-law’s home.  While inside the home he went into the separate room of his 12 year old niece and committed sex crimes against her.  Mr. Garcia tried to defend himself against a burglary charge by saying “I was invited into the house so I couldn’t have committed a burglary!”  Not so, said the Court of Appeal.  If, as Mr. Garcia did, you enter into other rooms in the house where you don’t have consent to be, a burglary occurs as to each room you entered without consent.  In Mr. Garcia’s case he had permission to enter the house but not the young niece’s bedroom where the sex crimes occurred. Therefore he fulfilled the requirements of entering a room (the niece’s room) with the intent to commit a felony (sexual molestation).  The intricacies of the law are always changing and you need a lawyer who is constantly up to date.  Your freedom can depend on  it.  


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A man walked down the narrow street. He saw a house being remodeled. There was no furniture in the house but there was obviously work being done on it. A “porta potty” was outside the house for the workmen to use. Lots of tools were in the garage; portable belt sander, air compressor, and a nail gun along with other items that could easily be sold. Temptation got the better of him. The man walked into the vacant house through an open unlocked door, where there were no plates, dishes, furniture, or anything else that would look like the house was inhabited.

The man stole the tools with the intent to sell them. While he was in the house the workmen came back and chased him away. Unfortunately for him he was arrested nearby still in possession of the stolen property. He was charged with burglary of an inhabited house and the enhancement that someone was home when the burglary occurred.

How could an obviously uninhabited house qualify as an inhabited dwelling house and just because the workmen come back why is the burglary all of a sudden a violent felony?

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Defendant was charged with residential burglary. The young man was Hispanic and was known to associate with gang members. He denied being a gang member himself but the police were constantly stopping him and conducting interviews in “consensual encounters”. He wasn’t consenting to being stopped by the police but unless he walked away that’s how the law looks at it.

When the burglary happened in his neighborhood, the police immediately suspected him even though they didn’t have any reasonable basis for their “hunch”. When the burglary occurred, the homeowner was home and frightened the burglar away. The police showed the homeowner two photos of the Defendant one at a time even though after each she could not say he was the one who had committed the burglary. A short time later the police returned with a photo line-up of six photos, only one of which had been shown to the homeowner before. Of course that would be the Defendant’s photo, and lo and behold, she identified him as the perpetrator.

Defendant was arrested three weeks after the burglary and questioned. He gave three different possibilities about where he was the night of the burglary changing his story each time.

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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.

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