Trespass

Trespass is 2 Witkin, Cal. Crim. Law (5th ed. 2025) Crimes--Property §§ 309 to 328

41 A.L.R.4th 773 [trespass prosecution for unauthorized entry or occupation of business, industrial, or utility premises to stage public demonstration]

Penal Code 602(i) destroying fence or leaving gate open

(i) Willfully opening, tearing down, or otherwise destroying a fence on the enclosed land of another, or opening a gate, bar, or fence of another and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying a sign, signboard, or other notice forbidding shooting on private property.

P.C. 602(i) (Opening gate): Opening a gate, bar, or fence and willfully leaving it open without written permission.

Penal Code 602(k)

Penal Code 602(k): (k) Entering lands, whether unenclosed or enclosed by fence, for the purpose of injuring property or property rights or with the intention of interfering with, obstructing, or injuring a lawful business or occupation carried on by the owner of the land, the owner’s agent, or the person in lawful possession.

P.C. 602(k) (Business interference): Entering lands for the purpose of injuring property or with the intention of interfering with, obstructing, or injuring a business or occupation. (See In re Wallace (1970) 3 C.3d 289, 295, 90 C.R. 176, 475 P.2d 208 [distributing leaflets at county fair to protest effect of automation on farm workers did not violate what is now P.C. 602(k); although defendants distributed literature near tomato harvester, members of public could freely inspect machine]; People v. Brown (1965) 236 C.A.2d Supp. 915, 919, 47 C.R. 662 [“lands” includes unimproved lands and urban land occupied by buildings]; In re Ball (1972) 23 C.A.3d 380, 386, 100 C.R. 189 [defendant was properly convicted of trespass where, after being denied permission to do so and not leaving on request, he set up table in amusement park parking lot to raise money and gather signatures for antipollution initiative and in so doing caused passenger tram to divert to another area; distinguishing Wallace]

CALCRIM 2930

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(k)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else;

2. When the defendant entered, (he/she) intended (to damage someone else's property [or property right]/ [or] to interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land));

AND

3. The defendant actually did (damage someone else's property [or property right]/ [or] interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land)).

Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

BENCH NOTES

The statute uses the term “injure.” (Pen. Code, § 602(k).) The committee has replaced the word “injure” with the word “damage” because the word “injure” generally refers to harm to a person rather than to property.

• Elements. Pen. Code, § 602(k).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Actual Damage Required. In re Wallace (1970) 3 Cal.3d 289, 295 [90 Cal.Rptr. 176, 475 P.2d 208]; In re Ball (1972) 23 Cal.App.3d 380, 386 [100 Cal.Rptr. 189].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662].

• Agent Defined. Civ. Code, § 2295.

In re Wallace (1970) 3 Cal.3d 289, 295 [interpreting former 602(j), currently 602(k), about distribution of leaflets at county fair]; In re Ball (1972) 23 Cal.App.3d 380, 386 [interpreting former 602(j), currently 602(k), about signature-gathering at Disneyland.]

CALJIC 16.330

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (k) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon any land, whether unenclosed or enclosed by fence, [with the specific intent to injure any property or property rights thereon] [or] [with the specific intent to interfere with, obstruct, or injure any lawful business or occupation being carried on [by the owner of the land or [his] [her] agent] [by the person in lawful possession of the land]] is guilty of a violation of Penal Code section 602, subdivision (k), a misdemeanor.

[“Land” includes improved or unimproved real property.]

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered land of another, whether unenclosed or enclosed by fence; and

2. The person did so with the specific intent [to injure any property or property rights thereon] [or] [to interfere with, obstruct, or injure any lawful business or occupation being carried on by the [owner of the land or [his] [her] agent] [or] [person in lawful possession of land]].

The 2003 Legislature renumbered subdivisions of Penal Code § 602, resulting in a change from subdivision (j) to (k). There was no other substantive change.

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288.

Evidence of an actual interference or obstruction or injury is relevant to whether the defendant possessed the required specific intent. (In re Wallace, 3 Cal. 3d 289, 90 Cal. Rptr. 176, 475 P.2d 208 (1970); In re Ball, 23 Cal. App. 3d 380, 100 Cal. Rptr. 189 (4th Dist. 1972).)

“Land” includes improved or unimproved real property. (People v. Brown, 236 Cal. App.2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965).)

Penal Code § 602(j) is not unconstitutionally over broad or vague as it relates to willfully entering property with the intention of interfering with the lawful business carried on by the owner. (In re Ball, 23 Cal. App. 3d 380, 387, 100 Cal. Rptr. 189, 193 (4th Dist. 1972).)

Penal Code 602(m)

P.C. 602(m) (Entering and occupying): Entering and occupying real property or structures of any kind without consent of the owner or possessor. (See People v. Brown, supra, 236 C.A.2d Supp. at 920 [in civil cases consent to enter may be withdrawn, and person remaining on land may become trespasser, but criminal statute cannot have that effect without express provision; hence, when defendants entered bank open to public, they could not be convicted of violating statute for remaining after being asked to leave]; People v. Wilkinson (1967) 248 C.A.2d Supp. 906, 910, 56 C.R. 261 [legislative purpose was to prevent squatter occupancy; hence, statute applies to continuous type of possession not to transient overnight occupancy of land by campers]; People v. Harper (1969) 269 C.A.2d 221, 222, 74 C.R. 859 [criminal trespass is not offense included in burglary; trespass may be on vacant property and is nontransient, continuous possession whereas burglary is limited to specified structures and requires only entry with no intent to occupy]; In re Y.R. (2014) 226 C.A.4th 1114, 1118, 172 C.R.3d 554 [defendant's stay in condominium clubhouse bathroom for several hours was only transient use and did not constitute “occupying” bathroom within meaning of trespass statute]; CALCRIM, No. 2931 [Trespass: Unlawfully Occupying Property]; CALJIC, No. 16.340 [Entering and Occupying Real Property].)

CALCRIM 2931

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(m)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

2. After the defendant entered, (he/she) occupied the (land/ [or] building) without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

3. The defendant occupied some part of the (land/ [or] building) continuously until removed. Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

• Elements. Pen. Code, § 602(m).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Entry Must Be Without Consent. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 920–921 [47 Cal.Rptr. 662]; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 932 [47 Cal.Rptr. 670], disapproved on other grounds in In re Hayes (1969) 70 Cal.2d 604, 614, fn. 2 [75 Cal.Rptr. 790, 451 P.2d 430].

• Occupy Defined. People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 909–911 [56 Cal.Rptr. 261].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662] [partially abrogated by statute].

• Agent Defined. Civ. Code, § 2295.

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Property, §§ 287- 288.

CALJIC 16.340

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (m) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon land or into buildings of any kind without the consent of [its owner, or [his] [her] agent] [the person in lawful possession thereof] and who occupies some portion or all thereof continuously or until ousted therefrom and with the specific intent to dispossess those lawfully entitled to possession of the property from that portion of the property occupied is guilty of a violation of Penal Code section 602, subdivision (m), a misdemeanor.

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered upon the land [or into buildings of any kind] of another person;

2. The person did so without the consent of the (owner, etc.);

3. That person occupied some portion, or all thereof, continuously or until ousted therefrom; and

4. That person entered and occupied the property with the specific intent to dispossess those lawfully entitled to possession from that portion of the property actually occupied.

USE NOTE

The 2003 Legislature amended Penal Code § 602, resulting in the renumbering of subdivision (l) to subdivision (m). There was no other substantive change. COMMENT

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288; People v. Brown, 236 Cal. App. 2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965); People v. Poe, 236 Cal. App. 2d Supp. 928, 931–932, 47 Cal. Rptr. 670, 670–672 (1965), adhered to 236 Cal. App. 2d Supp. 943, 47 Cal. Rptr. 679. Occupancy intended must be permanent or until ousted. (People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 910, 56 Cal. Rptr. 261, 263–264 (1967).) Union activity which is authorized by the state labor law constitutes an exception to the criminal trespass statutes: In re Catalano, 29 Cal. 3d 1, 13, 171 Cal. Rptr. 667, 623 P.2d 228, 236 (1981); Penal Code § 602(n).

Penal Code 602(n) Driving a vehicle

P.C. 602(n) (Driving vehicle): Driving a vehicle on land not open to the general public without consent from the owner or lawful possessor. This provision does not apply to a registered process server if the process server immediately attempts service on exiting a vehicle and leaves immediately on completing the service or on request of the property's owner or lawful possessor.

Penal Code 602(o)

(Refusing to leave): Refusing or failing to leave land, real property, or structures not open to the general public, on request by the owner or lawful possessor or by a peace officer at the request of the owner or lawful possessor. This provision does not apply to persons engaged in lawful labor union activities. (See In re Catalano (1981) 29 C.3d 1, 13, 171 C.R. 667, 623 P.2d 228, infra, § 319 [union officials entering construction site to complete safety reports].)

Penal Code 602(q)

P.C. 602(q) (Closed public building): Failing to leave a public building when closed or on request of the custodian, if the circumstances indicate that the defendant has no apparent lawful business there. (See In re Bacon (1966) 240 C.A.2d 34, 46, 49 C.R. 322 [protest assembly in university administration building]; Parrish v. Municipal Court (1968) 258 C.A.2d 497, 503, 65 C.R. 862 [test of what “circumstances indicate” is objective, i.e., how they appear to reasonable person, and is question for jury].)

Penal Code 602(t)

P.C. 602(t) (Violent felon): Entering on or refusing to leave private property, by a person who has been convicted of a violent felony as specified in P.C. 667.5(c) (see 3 Cal. Crim. Law (5th), Punishment, § 463) on the particular property, and who has been informed of the request by a peace officer acting at the request of the owner or the lawful possessor. (P.C. 602(t)(1).) A single notification or request is valid until rescinded. (P.C. 602(t)(3).) The statute is applicable only to a person who has been convicted of a crime committed on the particular private property. (P.C. 602(t)(2).) In addition, where the defendant has been convicted of a violent felony as specified in P.C. 667.5, the provisions of P.C. 602(t) apply without time limitation. However, if the defendant has been convicted of “any other felony,” the provisions apply for only 5 years from the date of conviction. If the conviction was for a misdemeanor, the provisions apply for only 2 years from conviction. If the conviction is for an infraction under P.C. 490.1 (petty theft where value is under $50), the provisions apply for only 1 year from conviction. The provisions do not apply to convictions for any other infraction. (P.C. 602(t)(4).)

Penal Code 602.1 Commercial business or public agency

P.C. 602.1 generally prohibits intentional interference with the lawful business carried on by a business establishment or public agency that is open to the public. Hence, it is a misdemeanor to (a) obstruct or intimidate those attempting to transact business with either entity, and (b) refuse to leave the premises after being asked to do so by the owner of the business establishment, or the office manager or supervisor of the public agency, or by a peace officer acting at the request of either the owner or manager or supervisor. A violation is punishable by imprisonment in a county jail for up to 90 days, or a fine of up to $400, or both. (P.C. 602.1(a) and (b).) It is an infraction, punishable by a maximum fine of $400, to intentionally interfere with the lawful business carried on by employees of a public agency by knowingly making a material misrepresentation of the law to those there to transact business, and refusing to leave the premises on the request of an office manager, supervisor, or peace officer. (P.C. 602.1(c).) P.C. 602.1 does not apply to persons engaging in lawful labor union or constitutionally protected activities. (P.C. 602.1(d).) (See People v. Turner (2017) 13 C.A.5th 397, 406, 220 C.R.3d 449 [probable cause existed to arrest defendant for interference with lawful business; manager repeatedly asked defendant to leave restaurant, interrupting her duties to call police and fill out paperwork, and police had been contacted on several other occasions when defendant had refused to leave].)

Penal Code 602.5 Trespassing at residence

(1) In General. Entering or remaining in a noncommercial dwelling house, apartment, or similar place without consent of the owner or lawful possessor, except in the course and scope of public employment in performance of a legal duty, is a misdemeanor. (P.C. 602.5(a).) (See CALCRIM, No. 2932 [Trespass: Entry Into Dwelling]; CALJIC, No. 16.350 [Unauthorized Entry of Property].)

(2) Aggravated Trespass. A person, other than a public officer or employee performing a legal duty, who enters or remains in a noncommercial dwelling without consent of the owner or lawful possessor is guilty of aggravated trespass if a resident or authorized occupant is present during the incident. Punishment is by imprisonment in a county jail for up to 1 year, or by a fine of up to $1,000, or both. (P.C. 602.5(b).) In addition, the court may impose 3 years of supervised probation that includes participation in specified counseling (P.C. 602.5(c)) and may issue an order restraining the defendant from contact with the victim for up to 3 years (P.C. 602.5(d)). In determining the length of a restraining order, the court must consider the seriousness of the facts, the probability of future violations, and the safety of the victim and the victim's immediate family. (P.C. 602.5(d).) P.C. 602.5 does not preclude a prosecution for burglary or other violations. (P.C. 602.5(e).) (See CALCRIM, No. 2933 [Trespass: Person Present].)

Penal Code 603. Every person other than a peace officer engaged in the performance of his duties as such who forcibly and without the consent of the owner, representative of the owner, lessee or representative of the lessee thereof, enters a dwelling house, cabin, or other building occupied or constructed for occupation by humans, and who damages, injures or destroys any property of value in, around or appertaining to such dwelling house, cabin or other building, is guilty of a misdemeanor.

Penal Code 602.8

(6) Trespass on Cultivated, Fenced, or Posted Land. It is a public offense to willfully enter, without written permission, land that is under cultivation or fenced off, or where specifically placed signs forbid trespass. (P.C. 602.8(a).) Punishment is as follows: (a) A first offense is an infraction punishable by a fine of $75; (b) a second offense on the same land or contiguous land of the same owner is an infraction punishable by a fine of $250; (c) subsequent offenses are considered misdemeanors. (P.C. 602.8(b).) The provisions of P.C. 602.8 do not apply to (a) licensed surveyors lawfully performing their duties, (b) persons exercising constitutionally protected activity, (c) the lawful service of process, or (d) persons engaged in lawful union activities. (P.C. 602.8(c).)

Penal Code 602.9

(7) Unlawful Possession of Residence. A person who claims ownership or claims or takes possession of a residential dwelling to rent it to another, or who causes another person to enter or remain in the dwelling to rent it to another, without the consent of the owner, or the owner's agent, is guilty of a misdemeanor. The punishment is a county jail term of not more than 1 year, a fine of not more than $2,500, or both. Each violation is a separate offense. (P.C. 602.9(a), (b).) These provisions do not apply to a person having a lawful occupancy interest in the dwelling. (P.C. 602.9(c).) Nothing in P.C. 602.9 precludes prosecution under any other applicable law. (P.C. 602.9(d).) (See P.C. 602.9(e) [legislative finding and intent that P.C. 602.9 has never precluded prosecution for grand theft or fraud].)

Penal Code 634 Trespass to invade privacy

Trespass To Invade Privacy. Trespassing to invade privacy is punishable by a fine, imprisonment, or both. (P.C. 634, 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 604.)

Fish and Game Code 2016

Hunting on Private Lands. (See Fish & Game C. 2016 [unlawful to take mammal or bird from, or discharge firearm on, land owned or occupied by another that is either under cultivation or enclosed by fence or posted with signs forbidding trespass or hunting]; Fish & Game C. 2018 [prohibiting unauthorized posting and malicious mutilation or destruction of posted notices].)