[Estimated read time: 9 minutes]
By: Diana Aizman
While many people have accidently crossed onto someone elses property or even intentially walked across a lawn what most people do not know is that “criminal trespassing” requires a specific intent by the tresspasser.
Under California Penal Code Section 602 “trespassing” is entry onto the property of another without permission or a right to do so.
However “criminal trespass” involves more than mere unauthorized entry onto the property of another. It also requires specific intent to interfere with, or to damage, the owner’s property right or the property itself; and actual interference with or actual damage to the property.
The following are the most common ways that California’s criminal trespass laws are violated:
- Entering onto another’s property to interfere with business ((Penal Code Section 602(k))
- Entering onto another’s property with the intent to damage the property1
- Unlawfully occupying the property of another ((Penal Code Section 602(m))
- Refusing to leave the property of another upon the owner’s request ((Penal Code Section 602(o))
- Refusing to leave a public building during those hours of the day or night when the building is regularly closed to the public after being asked to leave by someone employed there2
The less common ways a person can commit trespass under Penal Code Section 602 are as follows:
- cutting down, destroying, or injuring any kind of wood or timber standing or growing on someone else’s property Penal Code Section 602(a)
- taking oysters or other shellfish off of someone else’s land
A homeless man entered a public library and stayed in the library for a whole day, doing nothing but sitting on the floor. When the library was closing at the end of the day, the security guard asked the man to leave. The man pretended to walk out of the library, but instead went to the women’s bathroom and hid there. The next morning, the man proceeded to scare the female patrons, who entered the bathroom by growling at them angrily. The man violated subsection (q) of the Penal Code Section 602 by failing to leave a public building after being asked to leave.
To prove that you are guilty of “trespass,” the prosecutor has to prove the following facts or elements3
Because there are various types of “criminal trespass,” and the elements for each type depend on the certain type of trespass that is involved, it is simpler to list the common elements that the various types of “criminal trespass” entail. The elements are as follows:
- You willfully entered onto the property belonging to someone else4
- When you entered onto the property of another, you had specific intent to interfere with the owner’s property5
A man came to a car wash with intent to steal money from the cash register at the car wash. His brother operated a competing car wash right across the street and the two conspired to make things difficult for the other car wash. The man left his car to be washed and pretended to go pay at the register. Nobody was at the cash register and the register was locked, so the man unlawfully snuck into the back room where only authorized personnel was allowed and held up one of the employees at gun point.
He dragged the employee to the cash register and ordered him to turn over all the cash. In this instance, the man could be charged with commercial burglary and/or criminal trespass, because he willfully entered the car wash and his entry into the carwash and ultimately the back room interfered with business carried out there. Moreover, because he specifically intended to interfere with the business, he is guilty of trespass.
- You actually did interfere with the owner’s property6
Legal defenses to penal code 602 include the following:
Consent: If you had consent to be on the property, you have not committed trespass.
You did not “occupy” the property:
For the type of trespass that involves occupying someone else’s property and/or refusing to leave the property after being asked by the owner, if you did not actually occupy the property, you did not commit this type of trespass. To charge you with this type trespass, the property owner has to claim that you deprived him/her of the use or enjoyment of the property and did so for a substantial period of time. Therefore, if you can show that your stay was only brief or that your presence on the property did not affect the owner’s use or enjoyment of the property, you will not be guilty of this type of trespass.
You did not interfere with activity on the property:
For the type of trespass that involves actually interfering or obstructing activity on the property, such as business activity, if you did not actually interfere or obstruct, you are not guilty of the offense.
Lack of Intent to Interfere with Property: Because one of the elements of trespass is specific intent to interfere with the owner’s property, if you had no such intent, you cannot be convicted of criminal trespass.
You Had a Right to Be On the Premises
Often times, a union official or member may be charged with a trespass as a result of participating in union organized activity. Such an activity is protected by law and gives people a right to be on the premises even when entry was not explicitly authorized.
Jennifer is a union member who participated in a lawful peaceful protest against her employer for failure to pay wages and overtime. Jennifer and several other union employees assembled on the employer’s property. Jennifer is not guilty of criminal trespass, because as a union employee who lawfully engaged in a union organizing activity, she is allowed to engage in such an activity.
Even if the court finds that she was not lawfully on the premises, the fact that she was peaceably assembling on the employer’s property to express her opinion about the employer’s unlawful labor practices, her conduct is protected by the constitutional right of freedom of expression.
Trespass Charged as Infraction:
Some types of trespass are usually charged as an infraction. If you are charged with an infraction, you face paying a small fine.
Trespass Charged as Misdemeanor:
In the majority of cases, “criminal trespass” in California is a misdemeanor. This means that a defendant can face up to 6 months in county jail, or a fine of up to 1,000, or both the jail time and the fine.
Trespass Charged as Felony:
A trespass charge can even lead to a felony. For example, if you commit what is called “aggravated trespass,” the offense can be charged as a felony depending on the circumstances of your case and your criminal history.
Aggravated trespass is involved when you make a credible threat to physically injure someone and then within 30 days of the threat, actually come to their home or work without their consent to seemingly carry out that threat.
If you commit “aggravated trespass” and it is charged as a felony, you may face jail time for up to 16 months, 2 or 3 years.
Under California’s burglary law Penal Code Section 459, if you entered onto the property of another with the intent to commit a felony or petty theft therein, you can be guilty of burglary. This offense is related to criminal trespass in such situations as when you entered onto someone else’s property with intent to commit aggravated trespass under Penal Code Section 601 (as discussed above). In such an instance, you could be charged with both offenses. However, often times, criminal trespass is what is called a “lesser included offense” of the burglary. In such a situation, you can only be charged with one of the offenses but not both.
If you are charged with what’s called “commercial burglary” (burglary of a business as opposed to a residence), this type of charge is usually a misdemeanor for which you may face a county jail sentence of up to 1 year.
If you are charged with “residential burglary” (burglary of a residence), it will be charged as a felony for which you will face up to 6 years of state prison time.
Criminal Trespass and Grand Theft/Petty Theft
If you enter onto another’s property and steal something, you can be charged with both criminal trespass as well with whatever theft crime you committed.
A man broke into a jewelry store at night and carried away all the items on display. Because the man entered the business during a time when it was closed for business and because he stole jewelry from the store, he can be charged with criminal trespass as well as a theft crime under California Penal Code Sections 484, 488, depending on the value of the goods which he stole.
If you have been arrested for trespassing and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending trespassing case with an attorney contact the Aizman Law Firm at 818-938-1274 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- Penal Code Section 602(k [↩]
- Penal Code Section 602(q [↩]
- California Penal Code Section 602 [↩]
- Someone commits an act willfully when he or she does it willingly or on purpose. Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. [↩]
- “intent” in this context means the intent to commit the act of trespass and to intend the consequences of the act (i.e. interference with business. [↩]
- “interference” in this context includes such actions as damaging the property or the owner’s property right; or obstructing or damaging a lawful business or occupation carried on by the property owner. [↩]