What is Commercial Burglary (Penal Code 459) and What Are the Defenses?

Greg Hill
April 2, 2013 — 1,116 views  
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Commercial burglary, defined at Penal Code § 459, is the entering of a shop, store; office building, or any other commercial building with the intent to steal and then stealing something.  This crime is also defined as entering a commercial building with the intent to commit a felony other than stealing the property of another.

Burglary itself is often thought of as the breaking and entering of a building, but this requirement has been abandoned.  Burglary now simply includes any type of physical entry into a building with the intent to commit a theft therein.  Residential burglary includes, generally speaking, the burglary of a home or living space, whereas commercial burglary covers almost any other type of theft of items from within any type of enclosed or even semi-enclosed area.

Commercial burglary suggests that the scale of the burglary is quite large, but this is not necessarily so.  Commercial burglary is often charged for the same conduct as one charged with shoplifting (Penal Code § 484(a)).  There is no minimum value of items stolen for the crime of commercial burglary to occur.

Commercial burglary is often charged when one enters a store with some item indicating an intent to steal something inside the store.  This may be a knife that the client uses to scrape off a price tag or a security code on piece of merchandise, or scissors to open a package, or empty bags to put store items inside.

Depending upon how it is charged, punishment may involve county jail or state prison time because commercial burglary can be charged as either a misdemeanor or felony.  Consequently, when the case is filed as a felony, it may be appropriate to seek reduction of the changes to a misdemeanor by filing a motion to reclassify the case under Penal Code § 17 (b).

The defense of such charges is often difficult if the client is caught walking out of the store without paying for certain items.  However, like shoplifting, the intent may be missing if the client inadvertently walked out due to mistake, such as being distracted by a cell phone conversation, an e-mail or a text message, or being preoccupied with an unruly child, or overcome with emotional trauma (i.e. the client recently was diagnosed with cancer and cannot stop thinking of the consequences).  In unusual circumstances, a client's medical condition can be a factor.  Often, the store security films can support such a defense.

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Greg Hill


If you are charged with commercial burglary, shoplifting or grand theft, call our office. Greg Hill is an attorney in Torrance, California. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates represents clients in Torrance, Long Beach and the surrounding areas in all theft matters, as well as DUI, domestic violence and restraining orders, among other crimes in both state and federal court. Visit the firm's website at http://www.greghillassociates.com or the firm's Facebook page at http://www.facebook.com/pages/greg-hill-associates/198954460153651