In California, criminal trespass may be charged as an infraction, misdemeanor, or felony. Most frequently, it is prosecuted as a misdemeanor. Misdemeanor trespass is generally punishable by up to six months in county jail and a maximum $1,000 fine, although some violations (such as refusing to leave a battered women’s shelter) will raise jail exposure to one year.

Felony trespass is usually reserved for “aggravated trespass,” where there were threats of injury made to a person and followed within thirty days of an unlawful entrance of that person’s home or workplace. Aggravated trespass may be charged merely as a misdemeanor, depending on the circumstances of the defense and the defendant’s criminal history. A misdemeanor conviction for aggravated trespass is punishable by up to one year in the county jail and a maximum $2,000 fine; a felony conviction for aggravated trespass is punishable by 16 months, two years, or three years in state prison and a $2,000 fine.

Does the Prosecutor Have a Strong Case Against You?

If you are being charged with trespassing, the prosecutor must prove beyond a reasonable doubt that you willfully entered someone else’s property with the specific intent to interfere with that person’s property rights. There are two elements of the crime of trespass: willful entrance and specific intent.

The requirement that your entrance be “willful” means that the prosecutor must prove that you deliberately or purposely entered the other person’s property—the prosecutor need not prove that you were trying to break the law, just that you intended to be where you were. In other words, if you lost control of a car you were driving and drove across someone’s lawn, you could not be found guilty of trespass. But if you deliberately drove across someone’s lawn—whether out of spite or because your driveway was being blocked, or even for no reason at all—you might be found guilty of trespass.

The prosecutor must also show that you had the “specific intent” not only to enter another person’s property but also to effect the consequences of that act, that is, to interfere with that person’s property rights. In order to prove specific intent, the prosecutor will usually point to what you knew or should have known about the property you were entering. The presence or absence of “No Trespassing” signs may make a difference, as would your stated or unstated intent, such as if you were on the property to interfere with or obstruct normal business activities.

The California Penal Code (section 602) specifies over 30 different acts that will be considered prohibited trespass, ranging from taking down or damaging city signs to digging a hole without permission of the owner or legal occupant. The most common acts charged as criminal trespassing are:

  • Entering someone else’s property with the intent to damage the property;
  • Entering someone else’s property with the intent to interfere with or obstruct the business activities thereon;
  • Entering someone else’s property without permission and staying for a substantial, continuous amount of time;
  • Refusing to leave private property after being asked to do so.

Trespassing Cases Defenses

Depending on the facts of your case and the particular charges brought against you, there are a number of legal defenses a criminal defense attorney can present on your behalf in order to reduce or dismiss your charge. For example:

  • You had a right to be on the property.
  • You had consent to be on the property (this rule only applies to public property and situations where you are engaged in a protected activity, such as free speech, or where you were invited onto the property and were not otherwise engaged in illegal activity).
  • “No Trespassing” signs were not posted or spaced properly.
  • You did not occupy the property for a substantial, continuous period of time sufficient to an invasion of another person’s exclusive right of possession.
  • You did not interfere with or obstruct the business activities conducted there. If you have been charged with entering someone else’s property with the intent to interfere with or obstruct business activities conducted there, the prosecutor has the burden of proving that you actually interfered with or obstructed that business. A defense attorney would likely argue that the prosecution failed to meet this burden.

Criminal defense attorney Thomas Greenberg will explore whether defenses involving your constitutional rights or police misconduct are available to you.

The California Constitution grants judges the discretion to release defendants on their own recognizance. Defendants charged only with a misdemeanor are entitled to release on their own recognizance, unless it will compromise public safety or it is determined that, if released, the defendant is likely to not appear in court again.

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