2933. Trespass: Person Present
If you find the defendant guilty of trespassing, you must then decide whether the People have proved that a resident [or other person authorized to be in the dwelling] was present at some time while the defendant was trespassing.
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
The court has a sua sponte duty to give this instruction if the defendant is charged with aggravated trespass under Penal Code section 602.5(b).
This instruction must be given with CALCRIM No. 2932, Trespass: Entry Into Dwelling.
The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has or has not proved that another person was present.
Elements. Pen. Code, § 602.5(b).
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 247-248.
(New January 2006)