Contact Us Today (424) 372-3112


Difference Between Residential and Commercial Burglary

Posted by Sam Israels | May 13, 2024

A common question is, what is the difference between residential and commercial burglary in California? Burglary is divided into first-degree residential burglary (Penal Code 460 PC) and second-degree commercial burglary (Penal Code 459 PC).

Difference Between Residential and Commercial Burglary

Burglary is when someone unlawfully enters a structure intending to commit theft or a felony. Residential burglary is the burglary of an inhabited dwelling house or the inhabited portion of any other building. Commercial burglary is a different type of burglary, such as burglary of a closed business.

While burglary is a serious crime regardless of the structure burglarized, California defines residential and commercial burglary as having different elements of the crime and other penalties.  

Residential burglary is considered first-degree, while all other burglaries are second-degree offenses as defined under Penal Code 459 and 460 PC. 

Under PC 459, burglary is entering a residential or commercial structure or locked vehicle intending to commit grand theft, petty theft, or any felony offense. 

The crime of burglary is complete the moment you enter a structure with criminal intent, even if your intended crime was not completed, and forced entry is not required to be convicted.

If you are charged with burglarizing a residence, you will typically be subjected to more severe penalties than if the property is classified as commercial. Simply put, consider the following:

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

What Does the Law Say?

The full text of California Penal Code 459 PC 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.

California Penal Code 460 - First-Degree Burglary

A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if it was not occupied at the time of the burglary solely because a natural or other disaster caused the occupants to leave the premises.”

The full text of California Penal Code 460 PC 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 is the Definition of Burglary? 

In California, burglary is defined as entering a structure unlawfully with the intent to commit a felony or theft once inside. As noted, an actual commission of the intended crime is unnecessary to be convicted.  If the property was entered unlawfully, then the intent alone is sufficient. 

Residential Burglary

PC 460 residential burglary involves unlawfully entering any "inhabited" structure (residence) with the intent to commit a felony or theft, such as the following: 

  • Dwelling houses,
  • Vessels designed for habitation and
  • Trailer coaches (Recreational vehicles, etc.) 

A "dwelling house" could be any inhabited structure used as a residence. Under California law, "used as a residence" refers to any structure, vessel, or trailer used for sleeping and storing possessions—even if somebody is not present during the break-in. Breaking into any of the following places with intent to commit a felony or theft can be considered residential burglary:

  • Private residence,
  • Guesthouse,
  • Garage,
  • Apartment,
  • Houseboat,
  • Recreational vehicle,
  • Tent,
  • Hotel or motel room,
  • Hospital room.

Commercial Burglary 

Commercial burglary, or "second-degree burglary," refers to the same behavior described above but applies when the structure entered is not an inhabited dwelling, such as the following:

  • Businesses,
  •  Retail store and
  • Other non-residential structures.

What are the Penalties?

Both residential and commercial burglaries in California are serious crimes, but the charges and punishments will vary, such as the following: 

  • PC 460 residential burglary (first-degree burglary) is always a felony punishable by two, four, or six years in state prison and a fine of up to $10,000. It is also considered a “strike” under California's three-strikes law that increases penalties for people with prior serious or violent felony convictions. A second strike doubles the prison term. A third strike can automatically lead to a 25-year-to-life sentence. In Los Angeles County, prosecutors are declining to enforce the enhanced penalties for prior "strikes."
  • PC 459 commercial burglary (second-degree burglary) is a "wobbler" that can be charged as a misdemeanor or a felony, depending on the case details and your criminal history.  A misdemeanor carries up to one year in county jail and a fine of up to $1000. A felony carries 16 months, two, or three years in county jail and a fine of up to $10,000.

What are the Possible Defenses? 

Our California criminal defense lawyers could utilize different strategies against burglary charges. Perhaps we can negotiate with the district attorney to get a first-degree charge reduced to a second-degree charge to minimize penalties. Intent is a crucial element of burglary cases. Some common defenses might include the following: 

  • Perhaps we can argue that you didn't intend to commit a crime upon entering the structure, which could result in the charges being dropped.
  • Perhaps we can argue you had permission to enter the property.
  • Perhaps we can provide an alibi and argue that you were mistakenly identified as the perpetrator.
  • Perhaps we can argue you entered somebody's home to take back something you thought belonged to you.
  • Perhaps we can argue that the structure in question was not used as a residence at the time of the alleged burglary. Perhaps you entered an abandoned home where no one lived, slept, or stored possessions.

Perhaps we can negotiate to reduce the charges to simple trespassing. Contact our law firm, Cron, Israels & Stark, in Los Angeles, CA, for more information.

Related Content:

About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

Contact Us Today

Cron, Israels & Stark is committed to answering your questions about All Misdemeanor and Felony Crime law issues in Santa Monica and Los Angeles, California.

We offer a free consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.