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Residential vs. Commercial Burglary

Posted by Dmitry Gorin | Feb 28, 2024

While burglary is a serious offense regardless of the context, the State of California defines residential and commercial burglary with different criteria—and they are also punished differently. 

In simplest terms, residential burglary is considered first-degree burglary, while all other forms (including commercial burglary) are second-degree offenses

These laws are embodied in California Penal Code 459 and 460 PC. If you are charged with burglarizing a property legally considered a residence, you could face more severe penalties with longer-term implications than if the property is classified as commercial.

First-degree burglary is any residence burglary, while second-degree burglary is burglary of any building that is not a residence. First-degree burglary is often called “residential burglary,” and second-degree burglary sometimes is called “commercial burglary.”

Residential vs. Commercial Burglary in California
PC 459 commercial burglary is second-degree while PC 460 residential burglary is first-degree.

Under PC 459, burglary is entering a residential or commercial structure or locked vehicle with the intent to commit grand theft, petty theft, or any felony offense
As noted, burglary is divided into first- and second-degree in California.

The crime of burglary has been completed once you enter the structure with criminal intent, even if your intended crime is never accomplished, and forced entry is not required to be convicted.

PC 459 says, “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, 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. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

What is the Definition of Burglary under California Law?

In California, burglary is defined as entering a structure unlawfully with the intent to commit a felony or theft once inside. It's important to note that the actual commission of the intended crime isn't necessary for a burglary charge. If the property was entered unlawfully (i.e., without permission), the intent alone is sufficient to charge someone with burglary.

Residential Burglary 

Under PC 460, residential burglary involves illegally entering any "inhabited" structure (i.e., used as a residence) with intent to commit a felony or theft. The law recognizes explicitly three categories of inhabited structures:

  • Dwelling houses,
  • Vessels designed for habitation and
  • Trailer coaches (e.g., RVs and other trailers used for sleeping)

For purposes of this law, a "dwelling house" can be any inhabited structure (i.e., being used as a residence). California law also defines "used as a residence" as any structure, vessel, or trailer used for sleeping and storing possessions—even if the person using it as a habitation is not present at the break-in. 

Under this broad definition, breaking into any of the following with intent to commit a felony/theft could be considered residential burglary:

  • An apartment
  • Houseboat.
  • Garage used as a bedroom.
  • Guesthouse.
  • An RV.
  • Tent.
  • Hotel or motel room.
  • Hospital room.

Commercial Burglary 

Commercial burglary, or "second-degree burglary," refers to the same behavior but applies when the structure entered is not an inhabited dwelling. This can include businesses, stores, and other non-residential structures.

What are the Penalties?

Both residential and commercial burglaries are serious offenses, but the penalties and charges differ significantly.

Penalties for Residential Burglary

Residential burglary (first-degree burglary) is always charged as a felony in California. If you're convicted, you can be sentenced to two, four, or six years in state prison and fined up to $10,000.

Penalties for Commercial Burglary

Commercial burglary (2nd-degree burglary) is a "wobbler," meaning it can be charged as either a misdemeanor or a felony, depending on the specifics of the case and your criminal history. 

  • If charged as a misdemeanor, penalties can include up to one year in county jail and/or a fine of up to $1000. 
  • If charged as a felony, commercial burglary can lead to 16 months, two years, or three years in county jail.

California's Three Strikes Law and Residential Burglary

Not only is residential burglary a more severe offense, but it is also considered a "strike" under California's "Three Strikes" law. This law significantly increases penalties for individuals with prior serious or violent felony convictions. 

A second strike doubles the prison term for any new felony conviction, while a third strike can automatically lead to a 25-year-to-life sentence. However, the Three Strikes law has come under some scrutiny in recent years, and in some places (like Los Angeles), prosecutors are declining to enforce the enhanced penalties for prior "strikes."

What are the Defenses against Burglary Charges?

A California criminal defense attorney can employ several defenses against burglary charges, whether to combat the burglary charge in general or to get a first-degree charge reduced to a second-degree charge to reduce possible penalties. Common defenses may include the following: 

  • Lack of Intent: As intent is a critical element of burglary, demonstrating that you didn't intend to commit a crime upon entering the structure could lead to charges being dropped.
  • Consent: If you had permission to enter the property, it might negate the burglary charge, as the entry would no longer be considered unlawful.
  • Mistaken Identity: Providing an alibi or showing that you were mistakenly identified as the perpetrator could be a strong defense.
  • Mistake of Fact (claim of right): This is a legal defense to PC 459 related to lack of intent. Perhaps we can argue you entered someone's home to take back something you thought belonged to you or that you believed you had permission to take the item.
  • Not a Residence: A common strategy for reducing charges is to show evidence that the building, vessel, or trailer in question was not being used as a residence at the time of the alleged burglary. For example, if you entered an abandoned home where no one was living, sleeping, or storing their possessions, your attorney could try to negotiate a first-degree charge down to second-degree—or if your attorney can disprove intent to commit a crime, the charge might even be reduced to simple trespassing.

Contact our law firm for more information or a case review. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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