Is Trespassing a Crime in California? Penal Code 602 Explained

Q: Can I be charged with trespassing at a store that is open to the public?

Yes, once your permission to be there is revoked. A business open to the public can ask any customer to leave, and refusing to leave after a request from the owner, a manager acting as the owner's agent, or an officer acting at their request is trespass under Penal Code section 602. The prosecutor still has to prove that a qualified person made the request and that you willfully refused, and store surveillance and body camera footage often decide that question.

Q: Will a trespassing conviction show up on a background check?

Yes. A misdemeanor trespass conviction is a criminal conviction and appears on standard background checks until it is dismissed under Penal Code section 1203.4, and even then it may be visible in some contexts. Diversion under Penal Code section 1001.95 avoids the conviction entirely, which is why it is usually the first thing to pursue in a first-offense case. An infraction-level trespass is treated differently from a misdemeanor on most checks.

Q: What is the difference between trespassing and burglary?

Intent at the moment of entry. Burglary under Penal Code section 459 requires proof that you entered a building or locked vehicle intending to commit theft or a felony inside. Trespass under Penal Code section 602 or Penal Code section 602.5 requires only an entry or a refusal to leave without consent. When the prosecution cannot prove the felonious intent, a burglary charge is often reduced to trespass, which is why trespass appears in so many plea agreements.

Q: Can a trespass charge be dismissed?

Often, yes. Dismissals come from a diversion grant under Penal Code section 1001.95 or Penal Code section 1001.36, from a failure of proof on consent, the request to leave, or the required intent, from a civil compromise in property cases, or from a negotiated resolution. The path depends on the subdivision charged and the evidence, and a review of the police report and video is the first step.

Daniel Gramling, Esq.

5 minutes ago

13 min read

Is Trespassing a Crime in California?

The short answer: yes. Trespassing is a crime in California, most often a misdemeanor under Penal Code section 602, which lists dozens of specific ways a person can trespass, from refusing to leave a business after being asked to entering fenced land to occupying a property without consent. Some low-level versions can be charged as infractions, and two related statutes, Penal Code section 601 and Penal Code section 602.5, create more serious offenses when a threat or an occupied home is involved. A first-offense trespass is rarely a jail case, but it is a criminal conviction that shows up on background checks, and it is also one of the most common charges a criminal defense lawyer negotiates a burglary or vandalism case down to. This guide covers what the prosecutor must prove, the defenses, the penalties, and how these cases are handled in Riverside, San Bernardino, Hesperia, Ontario, and Los Angeles courtrooms.

Where these cases come from. Trespass filings in Southern California come from a handful of recurring situations: a customer who argues with a store manager in Ontario or Riverside and will not leave, a person who returns to an ex-partner's apartment in Hesperia after being told to stay away, campers or squatters on vacant High Desert land near Victorville or Barstow, protesters on private property, students on a closed campus, and people found in commercial buildings, rail yards, or utility property. The facts of each one map onto a different subdivision of Penal Code section 602, and the subdivision controls the elements.

What the Prosecutor Must Prove Under Penal Code 602

Refusing to leave after a request. The most frequently charged form of trespass covers a person who refuses or fails to leave property that is not open to the general public after being asked to leave by the owner, the owner's agent, or a peace officer acting at the owner's request. For this version the prosecutor must prove (1) that you were on land, real property, or a structure belonging to or lawfully occupied by someone else, (2) that the property was not open to the general public, or that you were in a part of it that was not, (3) that the owner, the owner's agent, or a peace officer at the owner's request asked you to leave, and (4) that you willfully refused or failed to leave. A store that is open to the public can still revoke your permission to be there, and once a manager tells you to go, staying is the crime.

Entering to interfere with a business or damage property. A separate subdivision reaches a person who enters land, whether fenced or not, with the intent to injure property or property rights or with the intent to interfere with, obstruct, or injure a lawful business. Here the prosecutor must prove (1) that you willfully entered the land, (2) that at the time you entered you specifically intended to damage property or to interfere with the business, and (3) that you actually did damage property or obstruct or interfere with the business. The intent at the moment of entry is the element that fails most often, because people who entered for an innocent reason and later got into a dispute did not have the required intent when they walked in.

Entering and occupying without consent. Another subdivision covers entering and occupying real property or a structure of any kind without the consent of the owner, the owner's agent, or the person in lawful possession. The prosecutor must prove (1) a willful entry, (2) that you occupied the property, meaning you stayed for more than a passing moment with some degree of continuity, and (3) that you did so without consent. Squatting cases, abandoned-house cases in the High Desert, and cases involving a former tenant or former partner who moves back in are charged under this theory.

Other listed forms. Penal Code section 602 also covers conduct such as driving a vehicle onto private property without consent, entering posted or cultivated land, refusing to leave a public building after closing or after being asked to leave for disruptive conduct, and entering specified restricted facilities. The subdivisions are lettered, have been renumbered over the years, and each carries its own elements, so the complaint should be read against the current text of the statute rather than against a summary. Trespass is a general intent crime in most of its forms, which means the prosecutor usually does not have to prove that you knew you were breaking the law, only that you willfully did the act. Prosecutors reviewing police reports apply the same filing standards we describe in What Prosecutors Look At Before Filing Criminal Charges.

Aggravated Trespass and Trespass Into a Home

Aggravated trespass under Penal Code section 601. This is the serious version. The prosecutor must prove (1) that you made a credible threat to cause serious bodily injury to another person, (2) that you intended to place that person in reasonable fear for their safety or the safety of their immediate family, and (3) that within 30 days of the threat you entered that person's residence or real property, or their workplace, without a lawful purpose and with the intent to carry out the threat. It is a wobbler, chargeable as a felony or a misdemeanor, and it is frequently filed alongside criminal threats under Penal Code section 422 in domestic violence and stalking cases. We explain the threat element in What Counts as Criminal Threats in California? Penal Code 422 and the stalking overlap in Stalking Under Penal Code 646.9.

Unauthorized entry of a dwelling under Penal Code section 602.5. Entering or remaining in a noncommercial dwelling house, apartment, or residence without the consent of the owner, the owner's agent, or the person in lawful possession is a misdemeanor on its own. When a person other than the trespasser is present in the home at the time of the entry, the statute elevates the offense to aggravated trespass of a dwelling, a misdemeanor with higher exposure, and courts can impose a stay-away order as part of the sentence. This is the charge prosecutors reach for when the evidence will not support burglary because there is no proof of felonious intent at entry. The difference between the two is the subject of our guide Is Burglary a Felony in California? Penal Code 459 Explained.

Obstructing a business under Penal Code section 602.1. Intentionally interfering with a lawful business open to the public by obstructing or intimidating customers or employees, and refusing to leave after being asked, is its own misdemeanor. It is charged in retail confrontation cases and in some protest cases, and it carries a shorter maximum custody term than the general trespass statute. The free speech defenses discussed below are most often litigated under this section.

Defenses to a Trespassing Charge

You had consent or a right to be there. Consent from the owner, a tenant, or anyone in lawful possession defeats most forms of trespass, and consent can be implied from past practice, an open invitation, or the nature of the property. A person named on the lease, a co-owner, or someone with a court order granting access is not trespassing even when another occupant objects, which is why landlord-tenant disputes and breakups so often produce trespass arrests that do not hold up. The question of who was in lawful possession on the day of the entry is frequently the whole case.

No request to leave, or no chance to comply. For the refuse-to-leave form, the prosecutor must prove that a qualified person asked you to leave and that you willfully failed to do so. A request from a customer, a bystander, or a security guard who was not acting as the owner's agent may not count, and a person who was arrested seconds after the request, or while gathering belongings to go, did not willfully refuse. Body camera footage and store surveillance usually resolve this, which is why defense counsel requests it immediately, a process we explain in How Does Discovery Work in a California Criminal Case?.

No intent to interfere or damage. Where the charged subdivision requires a specific intent at the time of entry, evidence that you entered for an innocent reason is a complete defense. Someone who walked onto a construction site in Riverside to retrieve a dog, cut across a field in Hesperia on the way home, or entered a store to shop and only later argued with staff lacked the intent the statute requires. Specific intent cannot be inferred from the dispute that followed.

The property was open to the public or not adequately posted. Several subdivisions apply only to property that is not open to the public, or to land that is fenced, posted with signs at the intervals the statute requires, or under cultivation. Vacant desert parcels around Victorville, Adelanto, and Barstow are often unfenced and unposted, and a charge that depends on posting fails when the signs were missing, illegible, or too far apart. Photographs of the property line taken promptly after the arrest matter.

Free speech on public forums and labor activity. Trespass statutes cannot be used to punish protected speech on property that functions as a public forum, and California gives broader protection to expressive activity on certain private property, such as large shopping centers, than federal law does under Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74. Labor picketing has additional statutory protections. These defenses are fact-specific and depend on the nature of the property, the reasonableness of time, place, and manner rules, and whether the conduct went beyond speech.

Mistake of fact and necessity. An honest and reasonable belief that you had permission, that the property was public, or that you were on your own land negates the willfulness most subdivisions require. Entering property to escape danger, to help someone in distress, or to avoid a greater harm can support a necessity defense in the right facts. For every defense, the question of what the officer saw, what the owner actually said, and what the cameras captured controls, and a weak case can be identified early using the checklist in What Makes a Criminal Case Weak in California?.

Penalties for Trespassing in California

Misdemeanor trespass. Most violations of Penal Code section 602 are misdemeanors punishable by up to six months in county jail and a fine, the default misdemeanor term under Penal Code section 19. First offenses in Riverside, San Bernardino, and Los Angeles County courts are commonly resolved with probation, a fine, community service, and a stay-away order from the property, rather than custody. Some subdivisions allow the prosecutor to charge the first and second offenses as infractions, and Penal Code section 602.8, which covers entering fenced or cultivated land without permission, treats the first two offenses as infractions and only the third as a misdemeanor.

Aggravated forms. Aggravated trespass of a dwelling under Penal Code section 602.5 when a person is present carries up to one year in county jail. Aggravated trespass under Penal Code section 601 is a wobbler, with felony exposure under Penal Code section 1170, subdivision (h), served in county jail rather than state prison, and misdemeanor exposure of up to one year. A felony conviction brings the consequences we describe in Misdemeanor vs. Felony in California: What Is the Difference?, including the firearm ban under Penal Code section 29800, and a wobbler can later be reduced under Penal Code section 17, subdivision (b), as explained in How to Reduce a Felony to a Misdemeanor in California.

Diversion is usually available. Because simple trespass is not on the exclusion list in Penal Code section 1001.95, a judge can grant misdemeanor diversion over the prosecutor's objection for up to 24 months, after which the charge is dismissed and the arrest is treated as if it never occurred for most purposes. Mental health diversion under Penal Code section 1001.36 is also available for people whose trespass arose from a diagnosed condition, which describes a large share of the trespass and loitering cases filed in Southern California. We cover eligibility in How Does Misdemeanor Diversion Work in California? and in Mental Health Diversion Under Penal Code 1001.36.

Collateral consequences. Simple trespass is generally not treated as a crime involving moral turpitude for immigration purposes, though aggravated trespass with a threat can be analyzed differently, and any conviction should be reviewed under the framework in Immigration Consequences of a California Criminal Conviction. A trespass conviction appears on background checks, can lead to a permanent ban from a retailer or campus, and in the domestic violence context often triggers a civil restraining order petition in family court. Dismissal under Penal Code section 1203.4 after probation is available for most trespass convictions, as described in How to Expunge a Criminal Record in California.

Trespass as a Plea Reduction From Burglary, Vandalism, and Domestic Violence Charges

Why trespass shows up in plea offers. Burglary under Penal Code section 459 requires proof that you intended to commit theft or a felony at the moment you entered. When the prosecutor cannot prove that intent, the remaining conduct is an entry without permission, which is trespass. The same is true of vandalism under Penal Code section 594 when the damage cannot be tied to you, and of unlawful entry cases in a breakup when the domestic violence allegations fall apart. A reduction from a felony burglary to a misdemeanor trespass under Penal Code section 602 or Penal Code section 602.5 is a common and valuable outcome in the Riverside Hall of Justice, the Rancho Cucamonga courthouse, and the Victorville courthouse.

What to watch for in a trespass plea. Not every trespass plea is harmless. A plea to Penal Code section 602.5 with a person present, or to Penal Code section 601, carries more weight on a background check than a plea to the general statute, and a plea that includes a stay-away order affecting a shared residence can have consequences in a pending custody case. Our guides Should You Take a Plea Deal in California? and How to Get Criminal Charges Dismissed in California explain how to evaluate the offer against a diversion request or a trial.

Where trespass cases are heard. Misdemeanor trespass cases are heard in the courthouse serving the city of arrest: the Riverside Hall of Justice for Riverside and Moreno Valley, the Southwest Justice Center in Murrieta for Temecula and Lake Elsinore, the Rancho Cucamonga courthouse for Ontario, Upland, and Chino, the San Bernardino Justice Center for San Bernardino and Redlands, the Victorville courthouse for Hesperia, Apple Valley, and Adelanto, the Barstow courthouse for Barstow and Fort Irwin, and the Clara Shortridge Foltz Criminal Justice Center, Van Nuys, Pomona, Long Beach, or Torrance courthouses in Los Angeles County; Orange County cases go to the Central, Harbor, North, or West Justice Centers. Confirm the assignment on the court's website. In most of these courts a lawyer can appear for you under Penal Code section 977, subdivision (a), as we explain in Do I Have to Go to Court for a Misdemeanor in California?.

Common Mistakes in Trespass Cases

Explaining yourself to the officer. People charged with trespass almost always talk, because the conduct seems minor and the explanation seems obvious. The explanation usually supplies the missing element, such as an admission that you heard the manager ask you to leave. Say that you want a lawyer and stop; see Do Not Say This to Police in California.

Going back to the property. A second visit after a citation produces a second count and often an escalation to aggravated trespass, a stalking allegation, or a restraining order. Stay away until the case is over.

Ignoring the citation. Many trespass cases begin with a cite-and-release under Penal Code section 853.6 rather than a booking, and people treat the citation like a parking ticket. Missing the court date brings a bench warrant under Penal Code section 978.5 and a separate failure-to-appear charge. Our guide Cited and Released for a Misdemeanor? Do I Need a Lawyer for a Citation? explains what the citation starts.

Frequently Asked Questions

Is trespassing a misdemeanor or a felony in California?

Usually a misdemeanor, sometimes an infraction, occasionally a felony. Most violations of Penal Code section 602 are misdemeanors carrying up to six months in county jail, and some low-level subdivisions can be charged as infractions. Aggravated trespass under Penal Code section 601, which requires a credible threat followed by an entry within 30 days, is a wobbler that can be charged as a felony. Aggravated trespass of an occupied dwelling under Penal Code section 602.5 is a misdemeanor with up to one year of exposure.

Can I be charged with trespassing at a store that is open to the public?

Yes, once your permission to be there is revoked. A business open to the public can ask any customer to leave, and refusing to leave after a request from the owner, a manager acting as the owner's agent, or an officer acting at their request is trespass under Penal Code section 602. The prosecutor still has to prove that a qualified person made the request and that you willfully refused, and store surveillance and body camera footage often decide that question.

Will a trespassing conviction show up on a background check?

Yes. A misdemeanor trespass conviction is a criminal conviction and appears on standard background checks until it is dismissed under Penal Code section 1203.4, and even then it may be visible in some contexts. Diversion under Penal Code section 1001.95 avoids the conviction entirely, which is why it is usually the first thing to pursue in a first-offense case. An infraction-level trespass is treated differently from a misdemeanor on most checks.

What is the difference between trespassing and burglary?

Intent at the moment of entry. Burglary under Penal Code section 459 requires proof that you entered a building or locked vehicle intending to commit theft or a felony inside. Trespass under Penal Code section 602 or Penal Code section 602.5 requires only an entry or a refusal to leave without consent. When the prosecution cannot prove the felonious intent, a burglary charge is often reduced to trespass, which is why trespass appears in so many plea agreements.

Do I need a lawyer for a trespassing ticket?

It is worth a consultation, because the citation is a criminal case. A trespass citation starts a misdemeanor prosecution, not a traffic matter, and a lawyer can usually appear for you under Penal Code section 977, request diversion, or negotiate a dismissal or an infraction. Gramling Law Group handles these cases on a flat-fee basis so the cost is known in advance.

Can a trespass charge be dismissed?

Often, yes. Dismissals come from a diversion grant under Penal Code section 1001.95 or Penal Code section 1001.36, from a failure of proof on consent, the request to leave, or the required intent, from a civil compromise in property cases, or from a negotiated resolution. The path depends on the subdivision charged and the evidence, and a review of the police report and video is the first step.

Talk to a Trespass Defense Lawyer in the Inland Empire

Gramling Law Group defends trespass, burglary, and vandalism cases at the Riverside Hall of Justice, the Rancho Cucamonga courthouse, the San Bernardino Justice Center, the Victorville and Barstow courthouses, and the Los Angeles and Orange County courthouses, and across the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for misdemeanor cases, including appearances under Penal Code section 977 so you do not miss work, and pursues diversion, dismissal, or reduction wherever the facts allow. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.