Trespass
Trespass is 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against 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(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.
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)
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).