Trespassing

You may think of trespassing as entering property for which you do not have the right to enter. That general conception is correct. But we often don’t consider that many other acts may be prosecuted under the trespassing law. For example, it is trespassing to remove timber, earth, sticks, or stones from land owned by another with the landowner’s permission or from public land without a proper permit. Other examples include refusing or failing to leave a public building during hours when the building is closed to the public after being requested to leave by a person with authority, such as a security guard, to do so. More common examples of acts that might be considered trespassing under California law might be jumping over a security fence to enter a gated apartment complex or refusing to leave a motel room after being asked to leave by management for non-payment on the room.

Example: Johnny B. is madly in love with Melody H. To express his love, he carves a large heart into an old oak tree in the yard of Melody’s Orange County residence with the words “JB loves MH.” Melody’s affections are not commensurate with her paramour’s and worse yet, the carving damages the fragile oak tree so much as to cause its demise. Melody calls the police to report the incident. Johnny is prosecuted for trespassing and vandalism. The trespassing statute specifically makes it unlawful to injure timber standing on the land of another. Here Johnny left telltale evidence that it was he who committed the trespass. But if he left those initials out of the heart’s center, defending him would have been easier: The prosecutor must be able to prove that it was Johnny that caused the damage.

Most trespassing violations are charged as a misdemeanor, although very specific trespass violations may be charged as an infraction. However, under certain conditions, a trespass may be charged as a felony as an aggravated trespass pursuant to Penal Code section 601. A trespass in which the offender made a credible threat to cause injury to another that is intended to put the threatened person in fear for his or her safety or for that of his or her family and within 30 days of making that threat unlawfully enters the person’s property or workplace with the intent to carry out the threat may be charged with aggravated trespassing. That’s a mouthful, so here’s an example:

After Melody H. called the police on Johnny B., his undying love for her turned to anger. He started sending her text messages that stated he was going to kill her and then himself. Melody was very scared as she believed Johnny was unstable and capable of carrying out this threat. Melody worked in the main library in Santa Ana so she was even more worried since Johnny could enter this public building at any time during open hours. Sure enough, Johnny showed up at the library a week after the text messages started. He did not have any weapon on him but even so, Melody believed he could—and perhaps would—carry out his threat. She called the police and Johnny was arrested for aggravated trespass. Since this offense can be charged as a misdemeanor or a felony, the Orange County district attorney felt it was serious enough to charge as a felony.

Orange County trespass defense attorney William Weinberg would consider this felony charge prime for a defense. Why? Because Johnny did not have any weapon on him. He threatened to kill Melody, but how would he accomplish this threat without a weapon? It would be a stretch for the prosecution to argue that he could murder Melody with his bare hands in this public space. Aggravated trespassing requires that the offender intended to execute the threat. Here, without any weapon on his person, there is no evidence that Johnny had the requisite intent.

Oftentimes, trespass will be charged along with other crimes. For example, someone who enters a vacant lot without permission and starts a bonfire, which spreads to a nearby structure will likely be charged with arson and trespass. Graffiti “artists” who spray paint private property may be charged with vandalism and trespass.

Misdemeanor trespass under Penal Code section 602 may be punished by a maximum term of six months in county jail and/or a fine not to exceed $1,000. In cases where the offender damaged property, the judge will also order that restitution be paid to compensate the victim fully for the damage. There are special cases of misdemeanor trespass that carry more serious penalties including certain non-cooperative acts in airport screening and refusing to leave a battered women’s shelter. These special circumstances can be punished by imprisonment for up to a year in county jail and higher fines.

Aggravated trespass under Penal Code section 601 can be prosecuted as a misdemeanor or a felony (a wobbler). If convicted as a misdemeanor offense, the maximum punishment is a year in county jail and/or a fine of up to $2,000. If convicted as a felony, the punishment can result in a prison sentence of up to three years.

Orange County attorney William Weinberg notes that trespass charges often present viable defenses. The prosecutor must prove that you willfully and intentionally trespassed without permission to enter the property and that you were aware that you did not have that permission. Say, for example, you had been granted permission by a landowner to target practice on his vacant acreage. A few weeks later, you return to practice your target shooting. This time, the landowner’s partner, who jointly owns the land, sees you target shooting on the land and calls the police on you for trespassing. You have a solid defense that you believed you had permission to be on the land.

Whether you are charged with simple trespassing, aggravated trespassing, or trespassing along with related crimes, Orange County trespassing defense attorney William Weinberg will fight for your rights. He has been defending those accused of trespassing and other crimes for over 30 years and he genuinely and personally cares about each client who walks through his door. He offers a free consultation to review your matter and assess your options. Contact him for a free consultation regarding your matter. If you decide to hire Mr. Weinberg to defend you, he will work with you on a fee structure that best suits your financial circumstance.

Call Mr. Weinberg at (949) 474-8008 or reach him by email at bill@williamweinberg.com