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.

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