Trespass

Trespass Penal Code Section 602

Penal Code section 602 PC prohibits an offense known as “trespass.”  You violate Penal Code section 602 PC when you enter or remain on someone else’s property without that person’s knowledge or permission, and without a right to do so.

Below are some examples of conduct that can constitute trespass under Penal Code section 602 PC:

  • Lingering at a restaurant when the owner has clearly asked you to leave;
  • Entering a homeowner’s lawn and sleeping there without the owner’s consent;
  • Entering an ex-wife’s or ex-girlfriend’s office with the intent of annoying or harassing her.

Penal Code 602 PC itself enumerates conduct that is considered criminal trespass.  This conduct includes:

  • Entering somebody else’s property with the intent of disturbing that person or the activities that the person is conducting on the property;
  • Entering and lingering in another person’s property without that person’s knowledge or permission;
  • Refusing to leave a private property after being asked by the owner to leave;
  • Refusing screening at an airport.

The latter conduct—refusing screening at an airport—is not commonly associated with a violation of Penal Code section 602 PC.  However, it does constitute trespass and can be prosecuted as such.

WHAT MUST THE PROSECUTOR PROVE

In order to prove you guilty of trespass under Penal Code section 602 PC, the prosecutor must prove beyond a reasonable doubt the following “elements” of the crime:

  1. You entered somebody else’s property and/or you occupied that person’s property;
  2. You did so intentionally and willfully;
  3. You did so with the specific intent to interfere with the property rights of the property owner;
  4. You interfered with the property rights of the property owner.

Let’s take a closer look at the elements:

Willfully

You cant willfully when you act intentionally or deliberately.   Acting willfully does not necessarily mean that you intend to break the law.   It just means that you intended to perform the act that gave rise to the offense.

You had specific intent

You act with “specific intent” when you not only intend to perform the act but you intend the consequences of the act.

For example, Jill, a homeless woman, enters the public library to find some respite from the heat outside.  Jill’s atrocious odor drives several people out of the library.  Jill is not guilty of trespass in this example. Though she intentionally entered the library, she did not do so with the specific intent of driving some of the patrons away or of anyway interfering with the library’s activities.  Jill, in other words, lacked the specific intent required for trespass under Penal Code section 602 PC.

You interfered with the property rights of the property owner

Interfering with the property rights of the property owner means either damaging that person’s property or interfering with the activities or business conducted on the property.  The prosecutor must prove that you succeeded in this endeavor.  In other words, if you entered the property owner’s property with the criminal intent to cause damage or interference but you did not succeed, you are not guilty of trespass under Penal Code section 602 PC.

For example, Jill believes that the restaurant owner of a restaurant treated her unfairly.  She steps into the restaurant and stands by the door.  Anytime a customer enters the restaurant Jill whispers to them that they have to be wary of the food.   The patrons ignore Jill and they all assume that she is deranged.  Although Jill’s actions were intended for the specific purpose of driving the patrons away, Jill did not succeed in this endeavor.  Arguably, therefore, she is not guilty of trespass under Penal Code section 602 PC.

Now imagine that a few of the patrons believe Jill’s warnings and walk away.  This time, Jill is guilty of trespass under Penal Code section 602 PC.

You occupied the property

To occupy a property means to remain in that property for a continuous and extended period of time without the owner’s consent.  For example, Jill in the first scenario above is not guilty of trespass because she was at the library for only a short period of time.  However, if she set up a tent on the library’s property and stayed in the tent for days, then she “occupied” library property without the owner’s consent and is therefore guilty of trespass under Penal Code section 602 PC. 

PENALTIES FOR VIOLATING PENAL CODE SECTION 602 PC

Trespass under Penal Code section 602 can be prosecuted as an infraction, a misdemeanor, or a felony.

Misdemeanor Trespass under Penal Code section 602 PC

If you are charged with a misdemeanor trespass under Penal Code section 602, you face the following penalties:

  • Informal or summary probation;
  • Maximum six months in county jail;
  • A maximum fine of $1,000.00.

Certain forms of trespass, however—such as refusing to leave a certain protected area like a battered woman’s shelter—carry harsher penalties and up to one year in county jail.

Trespass as an infraction under Penal Code section 602.8 PC

Trespass is charged as an infraction when you enter someone else’s property without permission and the land is clearly marked by “no trespassing” signs.  The penalties for an infraction include a $75 fine for a first offense, and a $250.00 find for a second offense on the first property.  However, if you trespass the same property for a third time, you may be charged with a misdemeanor trespass under Penal Code section 602 PC.

Aggravated Trespass under Penal Code section 601 PC

You can be charged with aggravated trespass under Penal Code section 601 PC if you make a credible threaten to seriously injure another person and, within 20 days of making that threat, you enter that person’s property or workplace with the intention of carrying out that threat.   Aggravated trespass is a wobbler, which means that it can be charged either as a felony or a misdemeanor, depending on the specifics of the offense and your criminal history.

If you are charged with aggravated trespass as a misdemeanor under Penal Code section 601 PC, you face up to one year in county jail and/or a fine of up to $2,000.00.  If you are charged with aggravated trespass as a felony under Penal Code section 601 PC, you face 16 months, 2 years, or 3 years in county jail, and/or felony probation.

DEFENSES TO TRESPASS

  • You had the right to enter or remain on the property

You are not guilty of trespass if you had the right to enter or remain on the property in the first place.

For example, Jack is the vice president of a labor union.  He enters a factory without consent from the owner but with the intention of investigating the factory’s labor violations.   Jack is not guilty of trespass because his position as a union member affords him the legal right to be on the property.

Typically, if you enter a property for the purpose of conducting a constitutionally protected activity—such as speech that is protected by the first amendment—then arguably you have a legal right to be on the property.

  • You had the owner’s consent to be on the property

If you initially had the owner’s consent to enter the property but then later occupied the property without consent, then you are not guilty of trespass.  However, if after initially giving consent the property owner asked you to leave the property, you can be charged with trespass for any further “occupying” of the property, unless your further “occupying” of the property was for the purpose of engaging in a constitutionally protected activity.

  • You did not occupy the property

One form of trespass is entering and occupying a person’s property without that person’s permission.   To be convicted of this form of trespass, you needed to have deprived the owner of use or enjoyment of the property for a period long enough to have deprived him or her of the use or enjoyment of the property.   A brief stay on someone else’s property does not constitute “occupying” the property for purposes of Penal Code 602 PC.

  • You did not impede or interfere with the activities conducted on the property

Another form of trespass is entering someone else’s property and intentionally interfering with the activities conducted on the property.  To be convicted of this form of trespass, you must have actually interfered or impeded in any way the activities on the property.   If you engaged in conduct that was simply disapproved of by the owner of the property, you are not guilty of trespass.

  • The property you entered was neither fenced nor marked by “no trespassing” signs

As mentioned above, you may be charged with trespass as an infraction if, without consent, you entered property that is either enclosed or marked with “no trespassing” signs.  If the property was not fully enclosed or marked off by no trespassing signs, then you could not have been put on reasonable notice that you would be entering the property without owner’s consent.   Therefore, you would not be guilty of trespass as an infraction under Penal Code section 602 PC.

RELATED OFFENSES TO TRESPASS

Burglary under Penal Code section 459 prohibits entering someone else’s property with intent to commit a felony inside.  And if you ender somebody else’s property intending to commit aggravated trespass under Penal Code section 459, then you can be charged with both trespass and burglary.   But, depending on the particular circumstances of your case, criminal trespass might be a lesser-included offense of your burglary charge.  In that case, you can be punished for either trespass or burglary, but not both.

Burglary is a felony if it is committed inside a home, and a wobbler (meaning it can be charged as either a felony or a misdemeanor) if it takes place in nonresidential structure, such as a commercial building.

Under Penal Code section 459 PC, it is unlawful to deface, damage, or destroy someone else’s property.  If you vandalize property during a trespass, then you can be charged with both vandalism under Penal Code section 459 PC and trespass under Penal Code section 602.

Vandalism under Penal Code section 459 PC is a misdemeanor if the value of the property is less than $400, but a wobbler if the damage to the property is $400 or more.

  • Theft related offenses and trespass

If you unlawfully enter somebody’s property and then steal an item from the property, then you can be charged with both a theft crime and trespass under Penal Code section 602 PC.   The exact circumstances of your alleged theft determines which type of theft crime—larceny, grand theft, or robbery—would be charged.

  • Trespass and domestic violence

Some domestic violence offenses are frequently charged with trespass.  For example, stalking under Penal Code section 646.9 prohibits stalking, harassing, or annoying a person to the point of inducing in that person fear of harm.   Criminal threats under Penal Code section 422 PC prohibits making a credible threat of violence against another person.  If you unlawfully enter a person’s property and then stalk them or threaten them with violence, then you can be charged with both trespass and/or stalking and criminal threats.

For example, Jack enters his brother Joe’s house to confront Joe about an issue that has been the source of argument and tension between the two brothers.  Joe repeatedly asks Jack to leave, but Jack refuses.  Instead of leaving, Jack threatens to Kill Joe.  Jack is guilty of both trespass and criminal threat.

HOW THE LOS ANGELES CRIMINAL ATTORNEYS CAN HELP YOU

As if with every case, Negin Yamini will thoroughly examine the particulars of your case to devise a defense theory and strategy that is best suited to your particular case.   Trespass is often a lesser-included offense of many crimes. If you are charged with a crime more serious than trespass, such as burglary or stalking, and if the evidence against you is overwhelming with respect to those charges, then Negin will consider requesting a trespass during a plea bargain negotiation. Feel free to contact our Los Angeles criminal defense attorney for a free consultation today.

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