Section 2932 | CALCRIM (Jury Instructions)

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.
AUTHORITY
•
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.
LESSER INCLUDED OFFENSES
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.
RELATED ISSUES
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].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 287–288.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.02 (Matthew Bender).
VANDALISM, LOITERING, AND TRESPASS
CALCRIM No. 2932
741

2933. Trespass: Person Present (Pen. Code, § 602.5(b))
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.
New January 2006
BENCH NOTES
Instructional Duty
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.
AUTHORITY
•
Enhancement. Pen. Code, § 602.5(b).
SECONDARY SOURCES
2 Witkin & Epstein, Californi