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).