Donte T Wyatt -
What can your criminal attorney do for your burglary case?
Burglary is one of the most common forms of theft crimes charge in the San Diego Superior Court. Burglary is the
illegal entry into a building, or locked vehicle with the intent to commit at theft or a felony therein. Most
burglaries are committed with the intent to commit some for of theft however if the accused entered with the intent
to murder, rape or with any other felonious intent the entry would still constitute a burglary. It is important to
note that entry with the intent to commit a misdemeanor would not constitute a burglary charge, however entry to
commit of theft no matter how small would be sufficient.
To prove that the defendant is guilty of this crime, the People must
1. The defendant entered a building, room within a building or a locked vehicle;
2. When he or she entered he or she intended to commit theft or a felony.
At common law burglary was a much more specific crime. At common law burglary was the entry of a residence or house
at night with the intent to commit a theft or felony therein. Today First Degree Burglary is the burglary of a
residence. Burglary of an inhabited dwelling place is a burglary in the First Degree, and a serious felony (a
“strike”). In addition, is the residence is occupied the offense becomes a violent felony as well.
First Degree Burglary
In order for a person to be convicted of first degree burglary the prosecutor must prove the following:
Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide
First degree burglary is the burglary of an inhabited house or a room
within an inhabited house or a vessel, ﬂoating home, trailer coach.
A residence, vessel, or coach is inhabited if someone uses it as a dwelling, whether or not someone is inside at
the time of the alleged entry.
It is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or
her to leave. It is not inhabited if the former residents have moved out and do not intend to return, even if some
personal property remains inside.
A house includes any structure that is attached to the house and functionally connected with it.
Burglary is the type of crime that is usually defended by alleging that the person accused is not the burglar.
Generally, the other elements will not be at issue unless the entry was into property that was not connected to the
home or the person only formed the intent to steal or commit the felony once inside of the house.
Therefore the criminal defense attorney must evaluate the type of initial identification and the criminal defense
attorney must have experience dealing with each type of identifications. There are several types of out of court
identifications that may confront the criminal defense attorney.
Curbside Line Up:
This is generally shortly or soon after the incident. The officers identify a possible suspect and they bring the
victim to the location of the suspect and they allow the victim to see the suspect and the victim tries to make a
positive identification if the suspect is the person that committed the crime.
There are several problem with the curbside lineup that the experienced criminal defense attorney will be aware of
and use in the defense of the accused. First, there usually only one person for the victim to choose from.
Secondly, the suspect is often in a location with bad and lighting. The suspect is also often in a patrol car or in
handcuffs with officers around him creating an aurora of guilt. Therefore these types of line ups are very bias
against the suspect.
Photo Line Up:
This is when the officer shows the victim a set of photos with possible suspects. The criminal defense attorney
must review this type of line up to insure that the line up is not biased. Do all of the people look similar or
does only one or two actually match the description given by the victim. Was a reasonable amount of photos shown to
the victim. Was there anything suggestive about the photo of the suspect or the way in which the detective or
officer conducted the line up.
Live Line Up:
This is when the officer or the detective has several people in a controlled environment (usually in a room
dedicated for this purpose) and the officer has the victim look at each individual and determine if the victim can
make an identification. Although, this is better then a photo line up it still has several flaws. First it is
usually hours if not days or weeks after the incident. In addition, it is important to determine if the subjects in
the line up look reasonably close to the description given by the victim.
With the advances in DNA evidence juries and the public in general has began to question eye witness identification
evidence, however in order for a defendant to effectively take advantage of this shift in public consciousness they
need an attorney that can effectively evaluate these types of identification and present a defense that exploits
the short coming of each of these types of evidence.
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