Best defense? You need a criminal defense attorney. They can challenge any and all elements of the crime, speak with the prosecutor, get deal, or case dismissed, etc.
That being said... IF the facts you stated are exactly what happened, with NO inaccuracies... it seems that there was no "ENTRY," thus no burglary.
Under Penal Code 459, a person who enters any house with the intent to commit larceny or any felony is guilty of a burglary. Even a slight entry is sufficient. However, for an entry to occur, a part of the body or an instrument must penetrate the outer boundary of the building.
Good Luck! Get an attorney.
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Sounds like a law school exam question. If not, then I suppose you could argue that there was no steps taken to commit the crime and more importantly, no entry into the building. A burglary requires penetration, however slight, of the threshold of the home, whether it be a window, door or some other entry point . So for example, taking a window screen off of a window would constitute an attempted burglary since there might be a penetration where the screen fits into the window. If the woman were found to have made the attempt, the man is liable as an aider and abettor probably as a lookout. Looking into a window or jiggling a door handle is not enough to constitute penetration.
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Your best defense is to proceed with an attorney that knows all the particular facts of the case and how the law is applied to those facts. You should obtain a free consultation from a criminal defense attorney in San Diego County to learn exactly what can be done to ensure the best possible result.
Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381
As the others have suggested, your best bet is to hire one of us local San Diego criminal defense attorneys who have experience with these types of cases. As you describe it, all of the elements required for burglary do not appear to have been met. Hence a good criminal defense attorney should be of invaluable help to you in this type of a case.
I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California matter. Please call my office at 619-238-1905 or visit my website at www.lawofficeofwilliamdaley.com
Hire the best, locally experienced, criminal defense attorney you can afford....if this is the defendant. If this is the attorney, get off the case and/or bring on someone who actually practices criminal defense law...not just is trying to because of the poor job market.
Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555