Residential Burglary

June 17, 2020 48299488 0 Comments

When the structure that a defendant chooses as the intended target for theft (or location to commit a felony) is a home or residence, the violation is first-degree burglary or as it is commonly known, residential burglary (Penal Code section 459).  An inhabited boat or floating home, an inhabited trailer or motorhome, an inhabited room of any structure, and an inhabited motel or hotel room all qualify as a “residence”.  The guiding rule is that someone must actually live in the residence (even if they are not present when the burglary was committed) versus a residence or home that is unoccupied, for whatever reason (up for sale, abandoned, etc.).  Also, a residential burglary charge is and can only be, a felony and it also qualifies as a “strike” offense under California’s Three Strikes law.


The punishment for those found guilty or convicted of residential burglary is much more severe than commercial burglary simply because it represents a violation against a victim’s home and refuge.  The punishment can range from a grant of formal probation (with a probation officer assigned) and up to one year of custody in the county jail, but if probation is denied, then confinement of 2, 4, or 6 years in state prison.  

Defense Strategy

While some residential burglaries appear rather straightforward (a convicted sex offender dressed in black slips through an open window and commits a rape, or a career thief breaks open back door and leaves with television), there are other situations that may merit additional evaluation by the attorney and hopefully further consideration by the prosecutor:

  • a young, female teen goes into friend’s home and takes clothing from her bedroom
  • first-time offender grabs bicycle from open garage
  • homeless person steals food from refrigerator in a detached family patio-room

These real-life scenarios all technically qualify as residential burglary offenses.  However, an experienced attorney ought to try and develop a strategy that may offer further context to the clients’ actions.  Perhaps the female teen is from a broken home, suffering from depression, maybe the client who stole the bike did so due to low self-esteem and “peer pressure” from friends and lacks self-esteem, and the homeless person stole the food out of hunger and desperation.  While none of these explanations provide a complete defense, they can provide insight and empathy for the client, and assist his/her attorney, prosecutor and judge in creating an appropriate sentencing solution!