Understanding the stark difference between residential and commercial burglary in California is crucial. The weight of a burglary accusation, regardless of the context, is undeniably serious.
California law distinguishes residential and commercial burglary, each carrying its own set of legal implications, penalties, and considerations. Being aware of these distinctions is key to understanding the gravity of the situation.
Specifically, residential burglary is a first-degree burglary, while commercial burglary falls into the category of second-degree burglary, subject to potentially lesser penalties.
In clear terms, residential burglary is legally classified as first-degree burglary, while all other forms, including commercial burglary, fall under the category of second-degree offenses. Understanding these legal definitions is crucial for anyone facing a burglary charge.
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.
Simply put, first-degree burglary is any burglary of a residence, 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 is sometimes called "commercial burglary."
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 offenses 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.
What Is Burglary?
Under California Penal Code 459, burglary occurs when a person unlawfully enters a building, structure, or other defined space with the intent to commit theft or any felony.
'Intent' in this context refers to the mental state of the person at the time of entry. It means that the person had the purpose or goal of committing theft or a felony when they entered the space. Importantly, you don't need to actually break into a space; simply entering with the required criminal intent may constitute burglary under the law.
This broad definition applies to various scenarios, from entering someone's home to stepping into a store, provided that the intent to steal or commit a felony exists at the time of entry.
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."
Penal Code 460 divides burglary into two degrees based on the type of structure entered and its use. Burglarizing an active residence is always charged as first-degree burglary, while burglarizing other structures (including commercial facilities) is charged as second-degree burglary. The distinction matters because the penalties for each are significantly different.
What is Residential Burglary?
Residential burglary (i.e., first-degree burglary under California Penal Code 460(a)) is always treated as a felony, underscoring the seriousness of crimes targeting places where people live. Residential burglary includes entering any structure used as a dwelling, whether or not it is currently occupied at the time of the crime. Examples of residences include:
- Houses,
- Apartments,
- Mobile homes,
- Garage used as a bedroom,
- Hotel or motel room,
- Trailers or camper vans if they are being used as living spaces,
- Floating homes designed for habitation.
The key factor is the structure being inhabited or designed for habitation, even if the residents are temporarily absent. For instance, entering a home that is unoccupied because the owners are away on vacation still qualifies as residential burglary.
However, the structure must be deemed a residence at the time of the crime. For example, an abandoned or partially constructed house that is not yet occupied does not qualify as a residence under this statute.
Penal Code 460 says, "(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, 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.
(c) This section shall not be construed to supersede or affect Section 464 of the Penal Code."
What are the Penalties for Residential Burglary?
Residential burglary carries some of the harshest penalties compared to other property crimes. Since it is a felony, a conviction can result in:
- Two, four, or six years in state prison
- Fines up to $10,000
- Felony probation under certain circumstances (at the court's discretion)
Additionally, residential burglary is considered a "strike" offense under California's Three Strikes Law. This means that a conviction could count toward the three strikes that lead to enhanced sentences for repeat felony offenders, including up to life imprisonment for a third strike.
The rationale for these severe penalties lies in the fact that residential burglaries are inherently more dangerous. The possibility of encountering residents heightens the risk of violence.
What is 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.
Commercial burglary is defined under Penal Code 460(b) as second-degree burglary. This type of burglary involves entering a space not used as a residence, such as:
- Retail stores,
- Office buildings,
- Warehouses,
- Restaurants,
- Doctor's offices or other professional spaces.
Since these structures are not designed for habitation, the legal definition of the crime and its corresponding penalties are less severe. Commercial burglary generally involves entering a business premises with the intent to steal or commit another felony, such as grand theft, embezzlement, or fraud.
What are the Penalties for Commercial Burglary?
Commercial burglary is considered a "wobbler" offense. This means it can be charged either as a misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal history. If charged as a misdemeanor, penalties include:
- Up to one year in county jail
- Fines up to $1,000
If charged as a felony, penalties can include:
- 16 months, two years, or three years in state prison
- Fines up to $10,000
Factors such as the value of stolen property, whether the defendant was armed with a weapon, and prior offenses will influence the prosecutor's decision to file charges.
California's Three Strikes Law and Residential Burglary
As noted, 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, prosecutors are declining to enforce the enhanced penalties for prior "strikes."
What are the Defenses for Burglary Charges?
The distinction between residential and commercial burglary is crucial when mounting a defense against such charges. For example, suppose there is any question as to whether the structure in question is classified as a residence at the time of the alleged crime.
In that case, a skilled California criminal defense attorney can leverage that discrepancy to have the charges mitigated from first-degree to second-degree burglary. The attorney may then be able to negotiate further to ensure the charges are filed as a misdemeanor rather than a felony. Common defenses against burglary charges 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: A strong defense could include providing an alibi or showing that you were mistakenly identified as the perpetrator.
- 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, suppose you entered an abandoned home where no one was living, sleeping, or storing their possessions, your lawyer could try to negotiate a first-degree charge down to second-degree if your attorney can disprove intent to commit a crime. In that case, the charge might even be reduced to simple trespassing.
For more information, contact our criminal defense law firm, Eisner Gorin LLP, based in Los Angeles, CA.
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