What is Residential Burglary?

By Richard Wingerden of the Law Offices of Richard Wingerden posted in Burglary on October 28, 2015.

On October  22, around 11:40 a.m., San Jose police responded to a house after they received calls that a person had been shot. When officers arrived, they discovered that the homeowner had been shot by one of three suspects whom the victim had found burglarizing his home. The suspects got away and the homeowner was treated at a hospital and released.

If the suspects are arrested, they will face numerous charges. One of the charges would be residential burglary. Residential burglary is codified in Penal Code sections 459-460(a). Penal Code section 459 reads in pertinent part, “Every person who enters any house, room, apartment, tenement, shop, warehouse, store,…, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”

In essence, once the three individuals entered the house and they planned to steal something or, as in this case, also committed another felony by shooting the homeowner, the violation of section 459 occurred. Let’s assume that after suspects entered the house, they decided not to take anything and did not commit any felony while they where in the house. In this circumstance, the suspects still violated section 459. Once they entered the house with the intent to steal, the violation occurred.

There are different degrees of burglary. The degrees are codified in Penal Code section 460 which states, “(a)  Every burglary of an inhabited dwelling house,… or the inhabited portion of any other building, is burglary of the first degree. (b)  All other kinds of burglary are of the second degree.” In the current facts, the suspects violated section 460(a) since they entered an “inhabited dwelling.” This is called first degree burglary or residential burglary. An example of second degree burglary would be if you entered Macy’s to steal clothes. Since Macy’s is not an “inhabited dwelling”, it is second degree burglary or commercial burglary.

If the suspects are arrested, they can face up to 6 years in prison for a charge of residential burglary. Another consequence of being convicted of a residential burglary is that it is classified as a “strike” crime. Please click to learn more about Three Strikes Law.

Should you find yourself in the above situation or in some other negative contact with law enforcement, please call us to schedule a free consultation at (408) 228-2297.

Homicide Suspect Wants to Get Arrested

By Richard Wingerden of the Law Offices of Richard Wingerden posted in Criminal Procedure on October 28, 2015.

On October  26, 2015, Hugo Ernesto Castro of San Jose went to the Santa Clara County Main Jail to turn himself in for killing his former girlfriend. He was turned away by a Sheriff’s deputy in the front lobby and sent back to the street.

According to a statement from Sheriff Laurie Smith, Castro walked into the lobby of the Main Jail and told a civilian staff member “about the location of a dead body.” The staff member in turn informed a correctional deputy. Sources familiar with the incident say the deputy told Castro a homicide in San Jose was not in the sheriff’s jurisdiction and directed him elsewhere.

To Mr. Castro’s credit, he followed the instructions of the deputy and traveled a couple of blocks to San Jose police headquarters, where he again tried to turn himself in. This time, he was interviewed by homicide detectives and arrested on suspicion of murder. He is expected to be formally charged at his arraignment today. Click to find out what typically happens at an arraignment.

First Day in Court

By Richard Wingerden of the Law Offices of Richard Wingerden posted in Criminal Procedure on October 23, 2015.

After you are arrested for a felony or misdemeanor crime, what happens at your first court date? Your first day in court is called an arraignment. Depending on the jurisdiction of the case, the following are some items that are typically addressed at the arraignment:

  1. Your attorney will make a general appearance on your behalf. That means that the attorney announces that they represent you and your legal interest, thus becoming your attorney of record.
  2. The court formally announces the charge(s) against you in the complaint. A complaint is the legal document filed by the District Attorney that charges(s) individuals of criminal wrong doing. The judge will then formally read the charges against you and advise you of your rights.
  3. In most jurisdictions, your attorney will waive formal reading of the complaint and advisement of rights. This is done to save time and your attorney will have already discussed with you what the complaint states and your rights.
  4. Unless there is a strategic reason, your attorney will waive your right to a speedy trial. This will be discussed between you and your attorney to determine what is best for you based on the facts and legal issues in your case. Usually extending time gives your attorney the opportunity to build a defense and attempt to get the District Attorney to dismiss your case or mitigate it to something less serious.
  5. Unless you plan to settle your case at the arraignment (which is rarely done), a not guilty plea will be entered and your case will be set for a future court date. Depending on the jurisdiction and the charge(s) against you, your appearance may not be required at future court appearances and your attorney will appear on your behalf.
  6. Your custodial status will be addressed if you are still in custody at arraignment. This may lead to a formal own recognizance release and bail hearing.
  7. The court may issue a protective order such as a peaceful contact or no contact order. This is typically done in domestic violence cases, family violence, child molest, rape, or other matters in which the court feels the victim needs protection.
  8. The arraignment triggers the discovery rules and requires the District Attorney provide your attorney of record with all of the evidence in your case.

Consequences for Carjacking

By Richard Wingerden of the Law Offices of Richard Wingerden posted in Serious Felony on October 23, 2015.

A female suspect, 30, was taken into custody after trying to flee the crash scene on Lombard Street in San Francisco. She was arrested Wednesday after running into traffic on Highway 101 in Corte Madera, carjacking a Subaru and crashing the vehicle in San Francisco, police said.

Based on her actions, she will be charged with carjacking. Carjacking is a violation of Penal Code section 215 which states, “Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” If convicted, her prison exposure for this charge will be from 3 to 9 years.

Carjacking is classified as a serious felony under the Three Strikes Law. This means that if she was convicted of carjacking, any future felony she is convicted of will be doubled. For instance, if she committed another carjacking sometime in the future, her exposure would then be from 6 to 18 years.

Hollister Residence Sentenced to 40 Years Sparks Training for Educators.

By Richard Wingerden of the Law Offices of Richard Wingerden posted in State Law on October 6, 2015.

The San Jose Mercury News reported that a former Morgan Hill teacher, John Loyd, 53, of Hollister, was sentenced on October 5, 2015, to 40 years in prison for sexually molesting four fifth-grade girls. Mr. Loyd was sentenced by Santa Clara County Superior Court Judge Edward Lee after he pleaded no contest to four felony counts of lewd or lascivious acts on a child by force, violence, duress or fear. This case has prompt the victims’ parents to seek a law requiring training for educators in how to recognize predatory behavior.

California law requires teachers to be mandatory reporters, along with more than 40 other classifications of professionals, to report suspected child neglect or abuse to law enforcement, probation department, or county welfare department. According to Penal Code section 11166, a mandated reporter must make a report “whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” Reasonable suspicion means that it is “objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect.” The statute does not, however, address what level of training is required

Pursuant to Penal Code section 11165.7, the requirement of training for mandatory reporters is as follows: “[E]mployers are strongly encouraged to provide their employees who are mandated reporters with training in the duties imposed by this article. This training shall include training in child abuse and neglect identification and training in child abuse and neglect reporting.” Whether or not employers provide their employees with training, they are still required to provide them information regarding this statute. Furthermore, “…school districts, county offices of education, state special schools and diagnostic centers operated by the State Department of Education, and charter schools shall annually train their employees and persons working on their behalf… in the duties of mandated reporters under the child abuse reporting laws. The training shall include, but not necessarily be limited to, training in child abuse and neglect identification and child abuse and neglect reporting.” Regarding public and private organizations, they are, “encouraged to provide their volunteers whose duties require direct contact with and supervision of children with training in the identification and reporting of child abuse and neglect.”

If a mandated reporter fails to report an incident, they can be charged with a misdemeanor that is punishable by up to six months in the county jail or by a fine of one thousand dollars or by both that imprisonment and fine.

Did you know that the Property was Stolen?

By Richard Wingerden of the Law Offices of Richard Wingerden posted in Theft on October 5, 2015.

On October 5, 2015, The San Jose Mercury News reported that two San Jose residents were arrested in Morgan Hill on suspicion of stealing a car and other offenses early Thursday morning. Heriberto Rojas, 19, and Christina Zambrano-Rodriguez, 20, were arrested on suspicion of stealing a vehicle, receiving stolen property, obstructing a police investigation and violating parole, police said.

Although both men were arrested on three separate charges and violating parole, we will focus on the charge of receiving stolen property. In California, receiving of stolen property is a violation of Penal Code section 496. To be found guilty of violating this crime, the district attorney will need to prove the following two elements: first, the defendant received (or bought, sold, aided in selling, concealed, or withheld from its owner) property that had been stolen or obtained by extortion; AND second, when the defendant received (bought, sold, aided in selling, concealed or withheld) the property, the defendant knew the property to be stolen or obtained by extortion. So not only does the district attorney need to establish that the property was stolen, they have to prove that the defendant actually knew that the property was stolen. If the district attorney fails to prove both elements, then the case should result in an acquittal at trial.

The obvious and easiest way to prove that the defendant knew that the property was stolen would be to ask the defendant. Did you know that the car was stolen when your friend sold it to you? Yes. Case closed. Now, what if the defendant attended a criminal 101 class and knew to invoke his or her Fifth Amendment right against self incrimination and did not make a statement? Then the district attorney would need to establish that the defendant knew that the property was stolen by the totality of the circumstances. It is the district attorney’s job to prove this, not you. So keep your mouth shut and ask for an attorney before you make any statement.

If you happen to find yourself in this unfortunate situation, you need to know your rights and possible defenses. Call the Law Offices of Richard Wingerden for a free professional consultation at (408) 228-2297. The office serves the entire San Francisco Bay Area, including San Jose, Santa Clara, Morgan Hill, Gilroy, San Mateo, and Fremont.