2916. Loitering: Peeking

The defendant is charged [in Count ______] with peeking in the door or window of an inhabited (building/ [or] structure).

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

1. The defendant delayed, lingered, prowled, or wandered on the private property of someone else;

2. When the defendant was on that property, (he/she) did not have a lawful purpose for being there;

AND

3. When the defendant was on the property, (he/she) peeked in the door or window of an inhabited building or structure.

[A (building/ [or] structure) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged peeking.]

[A (building/ [or] structure) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Authority

Elements. Pen. Code, § 647(i).

Specific Intent to Commit Crime Not Required. In re Joshua M. (2001) 91 Cal.App.4th 743, 746-747 [110 Cal.Rptr.2d 662].

Inhabitation Defined. See Pen. Code, § 459.

House Not Inhabited If Former Residents Not Returning. People v. Cardona (1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 51.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.20 (Matthew Bender).

(New January 2006)