Commercial & Residential Burglary

Commercial & Residential Burglary

Commercial & Residential Burglary

Penal Code §459


If you or someone you love is being investigated for, arrested for, or has been charged with violating Penal Code §459 (Commercial & Residential Burglary) time is not on your side. Every second that passes is vital.  Likely, the Prosecutor’s Office has already engaged their professional team to begin building their case against you.  And, depending on when you’re reading this, they could be working against you as you’re reviewing this information. We strongly recommend that you contact an attorney immediately after learning about these charges, to help you build a strong, successful defense.



Commercial & Residential Burglary occurs when a person enters into almost any occupiable structure with the intent of committing larceny or any felony. This is different from robbery, where a person steals directly from another person through the use of intimidation or coercion (i.e. mugging).


In the State of California, Commercial & Residential Burglary is governed by Penal Code §459, which states:


Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel . . . floating home . . . railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach . . . any house car . . . inhabited camper . . . vehicle . . . when the doors are locked, aircraft . . . or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

California Penal Code §459


The Elements

In law, every charge carries with it a set of “elements” that the Prosecutor must prove beyond a reasonable doubt. All of the elements must be proven in order to convict someone of a given crime.


The three elements to Commercial & Residential Burglary in California are:


  1. The accused person entered into a structure capable of being occupied or a locked vehicle;
  2. The accused person did not have permission to enter the structure or locked vehicle; AND
  3. When the accused person entered the structure or locked vehicle, they intended to commit a crime.


Our office is experienced at finding which elements the prosecution cannot meet, or which elements are weak points in the prosecution’s case against you and may keep the prosecution from being able to prove you guilty of Commercial & Residential Burglary under California Penal Code §459.


Possible Penalties

In California, burglary can be charged as a misdemeanor or a felony, depending on the “degree” of the charge. The degree is a measure of the severity of the crime under the law.

First-degree burglary (also known as “Residential Burglary”) is always a felony and counts as a strike under California’s Three Strikes Law. Any instance in which a burglary occurs when the structure is inhabited, the crime is automatically considered first-degree. The maximum punishment is six (6) years in prison.


All other instances are considered second-degree burglary (also known as “Commercial Burglary”). Second-degree burglary is a “wobbler:” a crime that can be charged as a misdemeanor or as a felony, depending on the severity and the opinions of the judge. As you can imagine, the more serious the charge, the more serious the penalties you could face. If you are charged with felony second degree burglary, you may face up to three (3) years in prison. Misdemeanor second degree burglary is punishable by up to one (1) year in jail and a fine up to $1,000.


Whether you are charged with first- or second-degree burglary, additional circumstances may be increase your maximum sentence. These include:


  • Prior felony conviction: One (1) year for each prior conviction
  • The victim was vulnerable (elderly, under 14, disabled, etc.): One (1) or two (2) years
  • If there is great bodily injury to the victim: Three (3) to six (6) years



The sooner you call our office the sooner we can hear the truth about what took place.  Depending on the facts of the situation, and whether you’ve called our office soon enough, we may be able to take the facts you share with us and meet with the District Attorney to keep charges from being formally filed against you.


If charges have already been filed against you, our office is experienced at going through all of the evidence line-by-line to find discrepancies and discover all possible defenses for your case.  As with all criminal cases, most defenses target at least one of the elements stated above.  Examples of defenses in a Commercial & Residential Burglary case that we may be able to find in your favor include (but are not limited to):


  • DIDN’T ENTER: It can’t be proved you actually entered the building.
  • NO INTENT: Prior to or at the time you actually entered the structure, you did not intend to commit a

theft or felony inside.

  • CONSENT: The owner gave you consent (actual or constructive) to remove property from the building.
  • WRONGLY ACCUSED: You were wrongly accused


Each case unique and may be better suited to one particular defense over another. Always speak to an attorney about all of your options when deciding the defense that may be best for you.  Call the Law Office of James Hassey at 619-745-5555 for your FREE consultation.