Commercial Burglary

June 17, 2020 48299488 0 Comments

A person commits second-degree burglary, or more commonly known as “commercial burglary,” when he/she enters a structure or room with the intent to steal or to commit a felony offense once inside (Penal Code section 459(a)).  Significantly, the crime of burglary is completed even if the defendant fails to steal anything or to commit a felony offense inside.  Additionally, the law does not require that the defendant actually break into the structure – it is enough to open an unlocked door or climb through an open window.  

The determination that someone formed the intent to steal (or commit a felony once inside) before entering a commercial building, store or facility is not always an easy one to make.  Unless the defendant makes a statement to police that he/she was intending to steal or commit a felony prior to entering a structure, a prosecutor will always need to look at the underlying factual circumstances and defendant’s actions to determine when the intent was formed. The following are examples of an intent to steal prior to entering a building/structure:

  • man enters jewelry store by opening a back window after hours
  • girl, without any money on her person, goes into the store changing room and places clothing from the store into bags she brought from home 
  • young man brings a label maker to make new price tags that he then places on merchandise he takes to sales counter to purchase


Very similar to grand theft penalties, the possible punishment for commercial burglary includes for a misdemeanor, probation and up to one-year custody in county jail, along with fines/fees and restitution (if any).  If charged and the defendant is convicted of a felony, the person may either receive a term of formal probation (a probation officer is assigned to the defendant), and up to one year of custody in county jail, in addition to fines/fees.  If probation is denied, then the defendant is facing confinement in state prison for 16 months, 2 years or 3 years.

Defense Strategy

A “prior intent” being the crucial element to burglary is subject to many of the same defenses available in all theft-related offenses, including, but is limited to mistake, inadvertence or neglect, and perceived consent from the victim.  Alternatively, if a good faith or reasonable argument can be presented to the prosecutor that the intent was made only “after” having entered the structure, then he/she may be amenable to reducing the charge to petty or grand theft.