Property Invasion, Damages, Trespass Questions about unlawful entry or breaking and entering

[CdwJava]

Even in CA there is a legal presumption that the person is there to do you harm and you can use reasonable force to defend yourself - including lethal force if necessary.

However, trespassing in an occupied dwelling is still only a misdemeanor here unless you can establish the elements of a felony which include that the intruder had the intent to commit theft or any other felony when he made entry. Absent such proof, even if filed as a burglary at the outset, it will likely be plead to a misdemeanor PC 602.5(b).

 

[mightymoose]

And in CA we do not have a "breaking and entering" offense.

PC 602 is simple trespassing.
PC 603 would be the "breaking and entering" offense. The only real difference is that there was force/damage associated with the entry. Still a misdemeanor though. They couldn't make a felony of this unless they got him to say something about his intent to steal something or commit some other felony (even if he didn't actually do it).

 

[mightymoose]

now if he continues to deny it how can we pursue civil damnages for the doggie door

Ask him to pay the damages. If he refuses, settle it in small claims.

 

[mightymoose]

So let me see if I understand this right - in CA someone can break into a house and as long as they don't steal anything or hurt anyone, it's not a felony???

Not necessarily. California takes into account the person's intent when breaking in. I am paraphrasing, but burglary is defined as entry into any structure with the intent to commit theft or any other felony.

Consider this- awhile back I arrested a guy after I watched him run from a Qwiki Mart at 2am. I caught up to him and found out that he had stolen a $1.47 beer from the store. Most people would consider this a petty theft... it's just a beer, and it was a store that was open. However, the store is a "structure" as defined in the code, and since the guy had no money on him it is reasonable to assume that at the time he entered the store (he was only in there long enough to grab the beer and run away) his intent was to commit theft. I arrested him on felony burglary charges and he went to prison.... granted, his prison stay had much more to do with his length rap sheet with a strike on it, but the charge stuck. Had the guy gone up to the counter, realized he didn't have his wallet, then grabbed the beer and ran.... we couldn't say he had intent to commit theft... and it would be a misdemeanor petty theft. Also, as the code defines it... you don't have to steal anything for it to be burglary. Entry into the building with the intent to commit ANY felony is burglary.... plus whatever the other felony is.

So... the point is to consider intent at the time of entry... and in this case we simply don't know. The police should have been called immediately. It sounds like a situation that the DA would have issued a warrant and he would have been arrested later.

At this point serving him with a restraining order is the best option. That way he is arrestable for just showing up.

 

[mightymoose]

Also consider the popular classroom scenario of the person who breaks into the rural farm house to use the phone call police or an ambulance for some sort of emergency.
You still have forcible entry, but no intent to steal or commit a felony. This is entirely legal... but the person would have to pay up for the damages.

 

[CdwJava]

PC 602 is simple trespassing.
PC 603 would be the "breaking and entering" offense. The only real difference is that there was force/damage associated with the entry. Still a misdemeanor though. They couldn't make a felony of this unless they got him to say something about his intent to steal something or commit some other felony (even if he didn't actually do it).

And, it is a lesser offense than 602.5(b). The 602.5 section used to be entitled "Home Invasion" ... that was some years back, though - before that term became synonymous with more serious threats. Just like 422 used to be entitled "terrorist threats" before 9/11 - now, it is usually referred to as "criminal threats."