Our common sense definition of trespassing is when you go on somebody else’s property. But in California law and in Penal Code Section 602, the crime of trespassing is more likely to be charged in a situation where you interfere with somebody’s use and enjoyment of their property, or you create a nuisance on their property, or you refuse to leave after they tell you to go.
California trespassing laws are unique in that they can be charged either as a felony, a misdemeanor, or an infraction. The prosecutor has the discretion which one to file based on the individual circumstances of your case. Normally, simple trespass in California can be charged as either an infraction or a misdemeanor. If you’re charged with an infraction of trespass, you most likely just face a fine.
However, if you’re charged with a misdemeanor trespass in California, you face up to six months in county jail, or up to a $1,000 fine, or both. In California, there’s another kind of trespass that’s more serious, and this is aggravated trespass.
Now, aggravated trespass occurs when you make a threat to injure someone seriously, and within 30 days of making that threat, you unlawfully enter that person’s home or workplace with the intent to carry out that threat that you had made. Now, aggravated trespass can be charged as either a misdemeanor or a felony. If you’re convicted of a misdemeanor, you face up to one year in county jail and up to a $2,000 fine. However, if you’re charged with aggravated trespass as a felony, you face up to three years in state prison and a $2,000 fine. Perhaps most importantly, if you’re convicted of a misdemeanor or a felony trespass, is that you’ll then have a criminal record. And that conviction will show up on criminal background checks, and this may prevent you from obtaining future employment or other benefits.
Trespass can be a surprisingly difficult charge for the prosecutor to prove, and in fact, a lot of innocent people get wrongfully charged with this offense.
One possible defense to the charge of criminal trespass in California is establishing that you did not interfere with the property owner’s use or enjoyment of their property. For example, merely entering onto somebody’s property isn’t enough to establish criminal trespass. So if you’re going for a walk and happen to take a rest on somebody’s property, be it in their grass or on their bench, that isn’t going to be criminal trespass. In order for it to be criminal trespass, you have to do something more. You have to be interfering with that property owner’s right to use their property and to enjoy their property.
Another defense to trespass in California is that you had consent to enter the property. Now, for example, say you go to a home of one of your friends who’s throwing a party. And once you’re there, his roommate, that wasn’t aware of the party, calls the cops and says that you were trespassing. Now, you could assert the defense of consent because one of the other lawfully-residing people there invited you into the home, and thereby gave you consent to enter the property. Thus, you would not be guilty of a trespass.
Sometimes trespass is used as a plea bargain in a more serious case. So for example, a person might be charged with domestic violence or lewd conduct or prostitution. And the defense lawyer reaches an agreement with the prosecutor that if you would dismiss that more serious charge, we’ll plead guilty to trespass, sometimes as a misdemeanor, sometimes even as an infraction. And the idea is that trespass is a lot less serious and carries a lot less stigma than the more serious offense that the person was originally charged with.