2932. Trespass: Entry Into Dwelling
The defendant is charged [in Count ______] with trespassing.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully entered or remained in a noncommercial (dwelling house[,]/ [or] apartment[,]/ [or other] residential place) belonging to someone else;
2. The defendant entered or remained without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property)(;/.)
<Give element 3 if evidence shows defendant may have been public officer.>
3. The defendant was not a public officer or employee acting in the lawful performance of (his/her) duties as a public officer or employee.]
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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
If the defendant is charged with aggravated trespass under Penal Code section 602.5(b), the court must also give CALCRIM No. 2933, Trespass: Person Present, with this instruction.
If there is sufficient evidence that the defendant was a public officer or employee, the court has a sua sponte duty to instruct on the defense. Give bracketed element 3. If lawful performance is an issue, the court has a sua sponte duty to instruct on when a public officer is lawfully performing his or her duties and that the prosecution has the burden of proving lawful performance beyond a reasonable doubt. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) For instructions on lawful performance by a public officer, see CALCRIM Nos. 2670-2673.
Elements. Pen. Code, § 602.5(a) & (b).
Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
Entry Need Not Be Without Consent. See People v. Brown (1965) 236 Cal.App.2d Supp. 915, 920-921 [47 Cal.Rptr. 662].
Building Must Be Used for Residential Purposes. In re D. C. L. (1978) 82 Cal.App.3d 123, 125-126 [147 Cal.Rptr. 54].
Agent Defined. Civ. Code, § 2295.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 247-248.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.10[d] (Matthew Bender).
Lesser Included Offenses
If the defendant is charged with aggravated trespass under Penal Code section 602.5(b) based on another person being present in the building, then "nonaggravated" trespass is a lesser included offense. The court must provide the jury with a verdict form on which the jury will indicate if the aggravating factor has been proved. If the jury finds that the factor has not been proved, then the offense should be set at the lower level misdemeanor.
Not Necessarily a Lesser Included Offense of Burglary
Trespassing in violation of Penal Code section 602.5 is not necessarily a lesser included offense of burglary based on the elements test. (People v. Lohbauer (1981) 29 Cal.3d 364, 369 [173 Cal.Rptr. 453, 627 P.2d 183].) A violation of Penal Code section 602.5 may be a lesser included offense of burglary depending on how that offense is charged. (See People v. Waidla (2000) 22 Cal.4th 690, 733 [94 Cal.Rptr.2d 396, 996 P.2d 46] [assuming for argument that trespass was a lesser included offense of burglary under accusatory pleading test].)
(New January 2006)