Criminal Defense

The Difference Between Residential and Commercial Burglary

July 09, 2021 by Mikel Rastegar in Criminal Defense  
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Residential and Commercial Burglary?

This is a common question that comes up in burglary charges (Penal Code Section 459). The short answer is that a residential burglary is known as first degree burglary, and is much more serious than a commercial burglary (known as a 2nd degree burglary). To give you more clarity on this issue, let’s dig deeper.

What is the Legal Definition of Burglary in California?

California PC 459 defines burglary as the entering of a structure with the intent to commit a theft or some felony. The two elements that are the sin quo non of a burglary are:

  1. you must enter a structure and
  2. you must have the intent to commit a crime.

The contours of a burglary can be sharpened by distinguishing it from robbery or theft. A robbery involves the taking of property with the use of force or fear as in a mugging, purse snatch or hold-up. On the other hand, a theft is stealing something of value without entering a structure with the intent to do so.

For example, if I’m employed at an office building and take a computer that belongs to someone else, I’ve committed a theft. The previous example is not a burglary because I did not enter the office building with the intent to steal the computer. I entered to go to work, and while I was there I formed the intent to steal the computer.

Entry is the crux of the crime of burglary. Some structure must be entered, whether a house in first degree burglary, or a business structure in 2nd degree burglary.

There is no requirement that the structure be broken into or force be used in the entry of the structure.

A door can be wide open or even open to the public, but if the intent is to enter to commit a theft or felony, then this constitutes burglary. If I go into the structure with the intent to steal something, but I do not end up stealing it, that still constitutes a burglary since entry with the intent to commit the crime is the burglary.

It’s important to remember that entering a structure to commit steal something is not the only circumstance that supports a burglary. If I enter a home or business to commit another felony, for example to assault, or to rape, or to commit domestic violence, then these would be considered burglaries as well, even if the felony I intended to commit was not accomplished.

What are the Consequences of a Residential Versus Commercial Burglary?

First degree burglary is a strike and considered a serious felony. If someone is home when the burglary is taking place, then it is considered both serious and violent and requires prison time served at 80% of the sentence (rather than half-time), unless there are unusual circumstances. Prison time for residential burglary without a person present is served at only 50%. The maximum prison term for one count of residential burglary is 6 years, and a $10,000 fine. The minimum prison term is 2 years, and the middle term is 4 years in state prison.

Commercial burglary, also known as 2nd degree burglary is much less serious and is considered a wobbler, meaning the charge can be filed as a misdemeanor or a felony, depending on the discretion of the District Attorney. For felonies, the maximum prison term is 3 years, served at 50%, and it is not a strike. For misdemeanor, the maximum term is 1 year in county jail, also served at 50%. Some examples of commercial burglary are:

  • I enter a jewelry store to take diamonds
  • I enter a bank and give bad checks
  • I enter a preschool and assault a teacher

What are Some Common Defenses to Burglary?

After Acquired Intent

Burglary charges can be hard to prove because of the intent requirement. Successful prosecution requires proof that the intent to steal or commit a felony existed at the time of entry. A common defense is “after-acquired intent”- i.e. that the intent did not exist until after the person entered the dwelling or structure.

Mistake of Fact

I could have believed that I was taking my own property or had permission to take someone else’s property. In such case, I’m not guilty of burglary because I’m missing the requisite intent requirement. I did not have the intent to take the property, but was instead mistaken about the what I took.

Mistaken Identification

This is the number one reason for false convictions in all cases, and burglaries are no exception. Eye witness identification are notoriously unreliable, and so are grainy and unclear video footage.

Suppression of Evidence

Proving a burglary case can be reliant on the evidence of what was stolen. However, if such evidence was acquired in an illicit way by the police, then such evidence can be suppressed, and the case can potentially be thrown out.

Paying Back the Victim

I’ve personally defended several cases where the defendant was obviously guilty, but I was able to negotiate either a misdameanor or a complete dismissal in exchange for the victim being made whole for the value of her stolen items. The idea is “Show me the money, and I’ll show you the honey!”

In summary, residential burglary is known as first degree burglary and is much more serious that commercial burglary, or 2nd degree burglary. Residential burglary is a strike and happens in someone’s home or backhouse. Commercial burglary happens in a business. Commercial burglary is not a strike, and wobbles between a misdemeanor and a felony.

Hire An Attorney

If you have been charged with Residential or Commercial Burglary, do not wait. Contacting a legal professional can ensure that your rights are protected.

With more than 20 years of experience, the Esfandi Law Group’s Los Angeles Criminal Defense Attorneys will fight hard for you. Contact us today to learn more.

Need a Criminal Defense Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.

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