Penal Code section 602.5 concerns entering or remaining in a noncommercial dwelling house, apartment, or other residential place without the consent of the owner, the owner’s agent, or a person in lawful possession. Subdivision (b) adds a separate fact: a resident or another person authorized to be in the dwelling must have been present at some point during the incident. The charging paper, the actual type and use of the space, who had lawful possession, the consent evidence, and the timing of any entry or continued presence can affect which branch is alleged. (Penal Code § 602.5)
Identify which section 602.5 branch is charged
| Branch | What the prosecution must prove | Potential consequence stated in the statutes |
|---|---|---|
| § 602.5(a) | Willful entry or remaining in a noncommercial dwelling house, apartment, or other residential place that belongs to another, without the consent of the owner, agent, or person in lawful possession. The statute excludes a public officer or employee acting within the course and scope of a legal duty. | The section makes this a misdemeanor. Where no different term applies, § 19 sets a general maximum of six months in county jail, a $1,000 fine, or both. |
| § 602.5(b) | The same basic dwelling and no-consent allegations, plus proof that a resident or another person authorized to be in the dwelling was present at any time during the incident. The People must prove that added allegation beyond a reasonable doubt; if it is not proved, CALCRIM No. 2933 treats subdivision (a) as the lower misdemeanor level. | Up to one year in county jail, a $1,000 fine, or both. If probation is granted, the court may order up to three years of supervised probation, and participation in court-designated counseling is a condition of probation. On conviction under (b), the court must consider a victim-contact restraining order, which may last up to three years; issuance is not automatic. |
An “entry” is not the only allegation to examine: the statute also covers remaining in the specified dwelling without consent. That means a case may turn on the timeline as well as how the person first entered. The statute focuses on consent from the owner, agent, or person in lawful possession; when those facts are disputed, do not assume that family relationship, residence history, or an invitation by one person resolves whose consent controlled. Ask counsel to review the specific people, communications, and events instead of relying on a general rule about who may enter. (Penal Code § 602.5)
Confirm that the place fits the residential definition
The statute is limited to a noncommercial dwelling house, apartment, or other residential place. A structure does not qualify merely because it is not a business. In In re D.C.L., the Court of Appeal concluded that a nonresidential hobby shed did not meet the habitation requirement. The actual use and living character of the space therefore matter; a label such as “shed,” “room,” or “outbuilding” does not decide the question by itself. (Penal Code § 602.5)
Separate dwelling entry from other trespass and burglary allegations
The word “trespass” covers different statutory allegations. Section 601 is a threat-based offense with its own credible-threat, timing, location, and intent requirements. Section 602 lists many specified trespass acts; it does not create one general interference-intent element for every case. For example, subdivisions (k), (m), and (o) describe different conduct involving interference with a business, entering and occupying property, or refusing to leave property not open to the public after a request. (Penal Code § 601; § 602)
Burglary under section 459 asks a different question: whether someone entered a listed structure with the intent, at the time of entry, to commit theft or a felony. Lack of consent is not a universal element of burglary. Section 602.5(e) also says it does not preclude prosecution under section 459 or another law. The California Supreme Court has held that section 602.5 is not necessarily a lesser-included offense of burglary under the statutory-elements test. A consent dispute under section 602.5 therefore does not automatically resolve a burglary allegation. See our separate California burglary guide. (Penal Code § 459; § 602.5(e); People v. Lohbauer.)
Organize the facts already available
For a charge review, note the exact count and subdivision; the address and kind of space named; how the space was used as a residence; who lived there or had lawful possession; who allegedly gave or withdrew consent; the timeline of entry and remaining; and whether a resident or another authorized person was present at any time during the incident. Keep the charging paper and communications or records already in your possession together. Do not assume that the label “trespass” answers which statute applies.
The Law Offices of David S. Chesley can discuss whether it can evaluate a California criminal charge and review the actual allegations. Call (800) 755-5174.