California Criminal Jury Instructions (CALCRIM) (2017)

2932. Trespass: Entry Into Dwelling

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2932.Trespass: Entry Into Dwelling (Pen. Code, § 602.5(a) & (b))
The defendant is charged [in Count ] with trespassing [in
violation of Penal Code section 602.5].
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
3. The defendant was not a public officer or employee acting in the
lawful performance of (his/her) duties as a public officer or
Someone commits an act willfully when he or she does it willingly or on
[An agent is a person who is authorized to act for someone else in
dealings with third parties.]
New January 2006
Instructional Duty
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(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.
Secondary Sources
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[2][d] (Matthew Bender).
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].)