What Is Trespassing?
Trespassing under California Penal Code 602 is the act of entering or remaining on another person's property without permission. California's trespassing law is one of the most detailed in the country, with over 20 subsections covering different types of unauthorized entry — from walking onto fenced land to refusing to leave a business after being asked. While many trespassing offenses are relatively minor, the charge can carry jail time and create a criminal record.
If you have been charged with trespassing in San Jose, San Francisco, Gilroy, Los Gatos, or anywhere in Santa Clara County, the attorneys at RV Litigation Group PC can help. Many trespassing charges arise from misunderstandings about property boundaries, disputes between neighbors, or situations where the accused had a legitimate reason to be present.
What the Law Says
Penal Code 602(m) — Entering and Occupying Property
"Every person who commits any of the following acts is guilty of a misdemeanor:... (m) Entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession." — California Penal Code Section 602(m)
This is one of the most commonly charged subsections. It applies to entering any real property or structure without the owner's consent. The prosecution must prove that you entered the property and that you did not have permission to do so. It covers homes, businesses, vacant lots, construction sites, and any other real property.
Penal Code 602(o) — Refusing to Leave
"Refusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession..." — California Penal Code Section 602(o)
This subsection covers situations where you initially had permission to be on the property but refused to leave when asked. It commonly applies to situations involving former tenants, business customers who refuse to leave after being told to, and individuals who overstay their welcome at private events.
Penal Code 601 — Aggravated Trespassing
"Any person who makes a credible threat to cause serious bodily harm to another person... and who, within 30 days, unlawfully enters into the residence or real property contiguous to the residence of that person, or the workplace of that person, with the intent to carry out the threat..." — California Penal Code Section 601
Aggravated trespassing is far more serious than standard trespassing. It requires a credible threat followed by entry into the victim's home or workplace within 30 days. This is a wobbler offense — as a felony, it carries 16 months, 2, or 3 years in county jail. It is often charged in domestic disputes and workplace conflict situations.
Real-World Examples
These scenarios illustrate how trespassing charges commonly arise in the Bay Area:
Urban explorers in San Jose enter a vacant warehouse through an unlocked door to take photographs. The property owner sees them and calls police. Even though they caused no damage and the door was unlocked, they can be charged with trespassing (PC 602(m)) because they entered the property without the owner's consent.
A customer at a retail store in Palo Alto gets into an argument with staff. The manager asks him to leave, and he refuses. After police arrive and repeat the request, he still refuses. He is arrested for trespassing by refusing to leave (PC 602(o)).
A man in Gilroy walks through his neighbor's unfenced backyard as a shortcut, as he has done for years. The neighbor installs a fence and posts "no trespassing" signs. The man continues using the shortcut. Once the property was clearly posted, continued entry without permission becomes trespassing under PC 602(k).
Teenagers in Morgan Hill climb over a fence at an active construction site to hang out at night. The fenced and posted property makes their entry trespassing under PC 602(k). If tools or materials were damaged, additional charges for vandalism may apply.
Penalties
Most trespassing offenses are misdemeanors, but the specific penalties depend on the subsection charged and the circumstances of the offense.
| Charge | Classification | Jail / Prison | Fine |
|---|---|---|---|
| Trespassing (PC 602) — Standard | Misdemeanor | Up to 6 months county jail | Up to $1,000 |
| Trespassing on Enclosed Land (PC 602.8) — 1st offense | Infraction | None | $75 |
| Trespassing on Enclosed Land (PC 602.8) — 2nd offense | Infraction | None | $250 |
| Aggravated Trespassing (PC 601) | Wobbler | Up to 1 year (misd.) or 16 mo–3 yrs (felony) | Up to $10,000 |
Additional consequences: A trespassing conviction creates a misdemeanor criminal record. In the context of domestic disputes, trespassing may trigger or violate restraining orders. Repeated trespassing at the same location can be used to support enhanced charges or restraining orders. A conviction can also affect employment prospects and housing applications.
Legal Defenses
Trespassing charges are frequently defensible. Many cases involve disputed facts, unclear property boundaries, or legitimate reasons for being on the property:
1. Consent or Permission
If the property owner or someone with authority gave you permission to enter or remain on the property, there is no trespassing. This includes express permission, implied permission (such as an open business inviting customers), or historical custom (you have used the access path for years without objection). We gather evidence of the authorization.
2. Public Access
If the property was open to the public at the time — such as a park during operating hours, a shopping mall, or a public building — you had a right to be there. We challenge whether the property was truly "not open to the general public" as required by many PC 602 subsections.
3. Necessity
If you entered the property to avoid a greater harm — such as escaping an emergency, seeking shelter during a natural disaster, or entering to help someone in danger — the defense of necessity may apply. We present evidence that your entry was justified by the circumstances.
4. Lack of Adequate Notice
Some trespassing subsections require that the property be posted with signs, fenced, or that you received actual notice not to enter. If the property was not properly posted, the fencing was inadequate, or you never received a verbal or written warning, the charge may not hold. We examine whether proper notice was provided.
5. Reclaiming Personal Property
If you entered someone's property to retrieve your own belongings — such as after a breakup or an eviction — you may have a defense. While self-help is not always the best approach, entering property to recover your own possessions with a reasonable belief in your right to do so can negate the criminal intent element.
Frequently Asked Questions
Under PC 602, trespassing is entering or remaining on someone else's property without permission. The statute has over 20 subsections covering different forms of trespassing, including entering fenced land, refusing to leave after being asked, occupying property without consent, and damaging property while trespassing.
Most trespassing offenses under PC 602 are misdemeanors, carrying up to 6 months in county jail. However, aggravated trespassing under PC 601 — which involves making a credible threat and then entering the person's home or workplace within 30 days — is a wobbler that can be charged as a felony with up to 3 years in prison.
It depends on the specific subsection. Some forms of trespassing require that the property be fenced, posted with no-trespassing signs, or that you received notice not to enter. Other subsections — such as refusing to leave after being asked by the owner — do not require signage. The specific facts of your case determine which subsection applies.
Trespassing is entering or remaining on property without permission. Burglary is entering a structure with the intent to commit theft or a felony. The key difference is intent — burglary requires proof of criminal intent at the time of entry, while trespassing only requires unauthorized presence on the property.
Yes. Under PC 602.8, trespassing on enclosed or posted land can be charged as an infraction rather than a misdemeanor, especially for first offenses. An infraction carries only a fine of $75 to $250 with no jail time. An attorney can negotiate for this reduction in appropriate cases.
