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