In California, burglary is divided into two categories: first-degree residential burglary and second-degree commercial burglary.
Although both involve entering a structure with the intent to commit theft or a felony, the classification significantly affects potential penalties, sentencing exposure, and long-term consequences.
If you are facing burglary charges, understanding the difference between residential and commercial burglary is critical to evaluating your legal options.
Your best chance for a favorable outcome is with an experienced criminal defense attorney at the Hedding Law Firm in Los Angeles. To schedule a consultation, call (866) 986-2092 or use the contact form here.
What Is Burglary Under California Law?
Under Penal Code 459, burglary is defined as entering a structure with the intent to commit grand theft, petty theft, or any felony.
Key points about burglary:
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The crime is complete upon entry with criminal intent.
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The intended theft or felony need not be completed.
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Forced entry is not required.
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Even a slight entry into a structure is sufficient.
The prosecution must prove that you intended to commit a theft or felony at the time you entered.
First-Degree Residential Burglary – Penal Code 460(a)
Residential burglary involves entering an inhabited dwelling with the intent to commit theft or a felony.
An inhabited dwelling includes any structure currently used for dwelling purposes, whether occupied at the time or not.
Examples of residential structures include:
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Private homes
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Apartments
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Guest houses
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Garages attached to residences
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Hotel or motel rooms
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Recreational vehicles used as residences
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Houseboats
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Tents used for sleeping
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Hospital rooms
If the structure is used for sleeping or living purposes, it is typically considered residential.
Second-Degree Commercial Burglary – Penal Code 460(b)
Commercial burglary refers to burglary of any structure that is not an inhabited dwelling.
Common examples include:
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Retail stores
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Office buildings
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Warehouses
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Closed businesses
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Storage facilities
Commercial burglary applies whether the business is open or closed at the time of entry, provided there was intent to commit theft or a felony.
Key Differences Between Residential and Commercial Burglary
The primary differences involve classification and penalties.
Residential burglary:
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Always charged as a felony
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Considered a serious felony
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Classified as a strike under California's Three Strikes law
Commercial burglary:
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Charged as a wobbler
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Can be filed as a misdemeanor or felony
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Not automatically a strike offense
Because residential burglary carries strike consequences, it is treated much more severely.
What Does “Inhabited” Mean?
“Inhabited” means currently being used for dwelling purposes.
A structure can still be considered inhabited even if:
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The occupants are temporarily away
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The residents left due to natural disaster
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No one was physically present at the time
If a building is abandoned and no longer used as a residence, it may not qualify as residential burglary.
Penalties for Residential Burglary
First-degree burglary penalties include:
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Two, four, or six years in state prison
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Fine up to $10,000
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Formal probation in limited cases
Because it is a strike offense:
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A second strike doubles the sentence
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A third strike can lead to 25 years to life
Residential burglary is considered a violent felony if someone was present in the residence during the offense.
Penalties for Commercial Burglary
Second-degree burglary penalties depend on how the case is charged.
Misdemeanor:
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Up to one year in county jail
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Fine up to $1,000
Felony:
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16 months, two years, or three years in county jail
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Fine up to $10,000
Commercial burglary does not carry automatic strike consequences.
Common Defenses to Burglary Charges
Burglary cases often hinge on intent. Defenses may include:
Lack of Intent
If you did not intend to commit theft or a felony at the time of entry, the burglary charge may fail.
Permission to Enter
If you had consent to enter the property, the prosecution may not be able to prove unlawful entry.
Mistaken Identity
Surveillance footage, eyewitness testimony, and circumstantial evidence can be challenged.
Claim of Right
If you reasonably believed the property belonged to you, this may negate criminal intent.
Structure Not Inhabited
If the building was abandoned or not used as a residence, the charge may be reduced from first-degree to second-degree burglary.
In some cases, burglary charges can be negotiated down to trespassing or theft.
Frequently Asked Questions
Is burglary the same as robbery?
No. Burglary involves entering a structure with criminal intent. Robbery involves taking property directly from a person using force or fear.
Do I have to break a window to be charged with burglary?
No. Forced entry is not required. Walking through an unlocked door can still qualify if intent existed.
Can shoplifting be charged as burglary?
Yes. Entering a store with intent to steal can technically qualify as commercial burglary.
Is residential burglary always a felony?
Yes. First-degree burglary is always charged as a felony in California.
Why the Distinction Matters
The classification between residential and commercial burglary dramatically affects:
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Prison exposure
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Strike consequences
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Immigration impact
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Plea negotiation leverage
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Future sentencing enhancements
Because residential burglary is a strike offense, reducing a charge from first-degree to second-degree can significantly change the outcome of a case.
Protecting Your Future
Burglary charges are aggressively prosecuted in California, especially residential burglary cases. If you are under investigation or already charged, early intervention by an experienced criminal defense attorney can make a substantial difference.
A skilled defense strategy may involve:
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Challenging the intent element
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Negotiating charge reductions
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Filing suppression motions
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Investigating evidentiary weaknesses
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Presenting mitigating circumstances
If you are facing burglary charges in California, consult with an experienced criminal defense lawyer immediately to evaluate your options and protect your record.
The Hedding Law Firm is here to help. Schedule your consultation today. Our law firm is based in Los Angeles, CA
