What is Aggravated Trespassing? Penalties? Defenses?

In domestic violence cases, it is common to also see charges of criminal threats, a violation of a previously issued civil restraining order or a criminal protective order, and sometimes, a false imprisonment charge.  Aggravated trespassing or aggravated felony trespassing can also be charged, but it is not often charged.  

What is aggravated trespassing or aggravated felony trespassing?

Aggravated trespassing, codified at Penal Code § 602.5(a), involves any person, other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, entering the home or residence of another without consent or refusing to leave, when asked, while the owner (or the owner’s guest) is present.  

A violation of this law is a misdemeanor with punishment is up to one year in county jail and/or a fine up to $1,000 in court fees and fines.  Penal Code § 602.5(b).  

If the owner or an owner’s guest is not present at the home or residence, but the trespasser entered the property with the intent to annoy or harass the owner or the owner’s guest  by so entering or refusing to leave, the violation is punishable by six months in county jail and / or a court fine of up to $1,000.  

If probation is granted for aggravated trespassing, a term of probation would most likely include that the defendant attend anger management and / or a domestic violence batterer’s program, depending upon the facts of the case, plus community service.

The judge most likely also would issue a criminal protective order to bar defendant from having any contact with the victim and entering or coming within a certain distance of the home or residence for up to three years, depending upon the likelihood that defendant will reoffend, the facts of the case and need for safety of the victim and/or the victim’s family.

When the trespasser makes a credible threat to seriously injure or harm the resident with the intent that the threat cause to place the other person in reasonable fear for his or her safety (or for the safety of their immediate family),and then knowingly enters the home or workplace of the other without permission within 30 days of making the threat with the intent to carry out the act or seeks to find that person while that person is present, it can be charged as an “aggravated felony trespass” under Penal Code § 601.

Punishment of aggravated felony trespassing can be as a misdemeanor with up to one year in county jail and a fine of up to $2,000 in court fines and fees.  Punishment for aggravated felony trespassing can also be as a felony with up to three years in state prison, to be served in county jail under AB 109, and a fine up to $10,000 in court fines and fees.

A conviction for aggravated felony trespassing would also have adverse immigration consequences.

The judge most likely also would issue a criminal protective order to bar defendant from having any contact with the victim and entering or coming within a certain distance of the home or residence for up to ten years, depending upon the likelihood that defendant will reoffend, the facts of the case and need for safety of the victim and/or the victim’s family.

The decision of whether to charge aggravated felony trespass as a felony or a misdemeanor depends upon the trespasser’s criminal history and / or the facts or the case.

It is important to note that the threat can be made orally, in writing or electronically (i.e., via text message).  

Serious bodily injury may include, but is not limited to, loss of consciousness, a concussion, bone fracture, a wound requiring extensive suturing, a loss of use of an organ for an extended period of time, or serious disfigurement. 

The defenses to aggravated trespass and aggravated felony trespass can be that defendant entered his or her own home, residence or workplace.  The person may have also entered the home, residence or workplace to apologize to the person.  

As to aggravated felony trespass, other defenses would be that there was no credible threat because it did not cause the recipient to be placed in fear of immediate harm, that the threat was not made with the intent to place the recipient in fear for his or her safety or the safety of his or her immediate family members.