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San Diego Burglary Defense: Different Charges for Residential vs Commercial Break-In

By San Diego Attorney on November 17, 2025

When facing a burglary charge in San Diego, the outcome of your case may depend on whether the alleged offense involved a residential or commercial property. A conviction for residential burglary often carries significantly harsher penalties than commercial burglary, especially when classified as a felony.

If you have been arrested for burglary, your first step should be to speak with an experienced San Diego burglary defense lawyer who understands the nuances of California law. At jD Law Criminal Defense Attorneys, we have decades of experience defending clients against burglary charges throughout San Diego County.

What Is Burglary Under California Law?

In California, burglary is defined by Penal Code § 459 as the unlawful entry into a building or structure with the intent to commit theft or any felony. It does not require the actual commission of a theft, only the intent to commit a crime at the time of entry.

Burglary is divided into two degrees under Penal Code § 460:

• First-degree burglary (residential)
• Second-degree burglary (commercial or non-residential)

Residential Burglary: First-Degree Felony

Residential burglary, or first-degree burglary, involves entering a dwelling, someone’s home, apartment, or any place currently inhabited. Under California Penal Code § 460(a), this offense is always charged as a felony, with the assumption that entering someone’s home carries a heightened risk to the occupants.

Penalties for Residential Burglary

A conviction for residential burglary can result in:

• 2, 4, or 6 years in state prison
• A strike under California’s Three Strikes Law
• Possible enhancements for occupied dwellings or prior convictions

If someone was present in the home during the alleged break-in, the stakes increase dramatically. Prosecutors may pursue more severe sentencing based on perceived threats to safety.

Commercial Burglary: Second-Degree Charge

Commercial burglary, or second-degree burglary, applies to break-ins involving businesses, stores, or any non-inhabited structure. It is often associated with after-hours entries into places like retail shops, warehouses, or offices.

Felony vs. Misdemeanor Burglary

Second-degree burglary is a wobbler, meaning it can be charged as either a misdemeanor or a felony, depending on the facts of the case and the defendant’s criminal history.

• Misdemeanor Penalties:
  • Up to 1 year in county jail
  • Probation
  • Fines and restitution
• Felony Penalties:
  • 16 months, 2 years, or 3 years in jail
  • Formal probation
  • Criminal record with possible immigration consequences

Whether the prosecution charges your case as a misdemeanor or felony can often be influenced by legal strategy, evidence challenges, and burglary plea strategies developed by your attorney.

Legal Elements the Prosecution Must Prove

To convict you of burglary, prosecutors must prove the following:

1. You entered a structure (residential, commercial, or otherwise).
2. At the time of entry, you had the intent to commit theft or another felony.

It is important to note:

• Entry does not have to be forced. Walking through an open door qualifies.
• Theft does not need to occur. Intent alone is enough.

This makes intent a critical area of focus in many burglary cases, and a target for effective burglary defenses.

Common Burglary Defenses in California

At jD Law Criminal Defense Attorneys, we thoroughly analyze the facts of each case to build a customized defense strategy. Common defenses include:

Lack of Intent

The most powerful defense to burglary is that the defendant did not enter the premises with criminal intent. If the intent to steal or commit a felony arose after entry, it may negate a burglary charge.

Mistaken Identity

In cases involving unclear surveillance footage or eyewitness accounts, misidentification is a real concern. A skilled burglary defense lawyer can challenge unreliable or circumstantial evidence linking a suspect to the scene.

Consent to Enter

If the accused had permission or lawful access to the premises, even if a crime occurred later, the burglary charge may not stand.

Illegal Search and Seizure

If police obtained evidence without a proper warrant or probable cause, your attorney may be able to suppress that evidence under California Penal Code § 1538.5.

Insufficient Evidence

When the prosecution relies on speculative or weak evidence, your defense attorney can seek dismissal or negotiate for a reduced charge.

Strategic Plea Options in Burglary Cases

Each case is different, but in many situations, plea negotiations can lead to significantly better outcomes than a trial conviction. A few examples of burglary plea strategies include:

Reducing First-Degree to Second-Degree

In borderline residential cases, such as breaking into a detached garage, your attorney may argue the location was not a true “residence,” reducing the charge to second-degree burglary.

Charging Theft Instead of Burglary

If prosecutors cannot prove intent at entry, a plea to a lesser offense like petty theft or trespassing may be possible. These charges carry lower penalties and less stigma.

Pretrial Diversion or Deferred Entry of Judgment

For first-time, non-violent offenders, diversion programs or deferred entry can result in case dismissal upon successful completion of conditions like counseling, restitution, or community service.

Alternative Sentencing

In misdemeanor burglary cases, a skilled attorney can argue for alternative sentencing options like:

• House arrest
• Probation
• Electronic monitoring

These outcomes often avoid jail and preserve employment, immigration status, and family stability.

Why You Need to Find a Lawyer Right Away

Whether you are facing allegations of residential burglary or commercial burglary, your freedom, reputation, and future are on the line. At jD Law Criminal Defense Attorneys, we are led by James N. Dicks, a Certified Criminal Law Specialist and former LAPD investigator with over 30 years of experience.

We understand the complexities of felony vs. misdemeanor burglary, we are familiar with how San Diego prosecutors build their cases, and we know how to dismantle weak or improperly charged allegations.

We have successfully defended clients in burglary cases involving:

• Alleged forced entry
• Inside job accusations from employers
• Shoplifting turned burglary
• Entry during business hours

Every detail matters. From the surveillance footage to witness credibility, our team investigates thoroughly and challenges every element of the prosecution’s case.

Speak With an Experienced San Diego Burglary Defense Lawyer

The sooner you involve a qualified burglary defense lawyer, the more options you have, whether that means dismissal, reduction of charges, or favorable plea negotiations.

Do not assume all burglary cases are the same. Let jD Law Criminal Defense Attorneys fight for your rights, your freedom, and your reputation.

Call (760) 630-2000 for a free consultation today.