Legal Question in Criminal Law in California

First degree burglary is entering a residence with the intent to commit theft or some other felony. If the defendant is sentenced to state prison, the judge can choose from terms of two, four or six years. The judge will consider the circumstances of the case, the defendant's prior record and other relevant factors in choosing a prison term.

Residential burglary is listed as a serious felony, which makes it a "strike" under the Three Strikes law. If someone other than the defendant or an accomplice was present in the home at the time, it is also considered a violent felony.

Most people sent to prison serve half of their sentence before becoming eligible for parole; however, if this offense meets the criteria above to be considered a violent felony, the defendant would have to serve 80% of the sentence.

Whether he gets credit for the five months in jail depends on whether that time was a result of the burglary arrest or some other offense.

If you are asking what are the penalties for a new burglary charge, with a felony 'strike' three years old, the answer is that the sentence is doubled if convicted of the new felony. If you have no 'strike', then it is the statutory penalty of 4 years subject to up or down enhancement, and negotiable in plea bargaining just like always. If you are serious about getting legal counsel in this, feel free to contact me.