Trespassing is gaining entry into a restricted area without permission. On the other hand, aggravated trespass is gaining access into a restricted area to commit an offense against a victim after issuing credible threats. If arrested and charged for the crime, you need a legal expert to represent you diligently. An attorney from The Los Angeles Criminal Defense Attorney will help you fight the charges and ensure you possibly avoid the harsh consequence that comes with an aggravated trespass conviction.
Aggravated Trespass According to Law
California Penal Code 601 PC defines aggravated trespass as issuing credible threats of serious harm to a person with the intent to cause them unreasonable fear then entering the person’s home or place of work after 30 days to execute the crime. Aggravated trespass is different from the typical trespass in that the former have aggravating circumstances. These aggravating circumstances include credible threats, intent to cause reasonable fear, and intent to cause significant bodily injury.
Elements of Aggravated Trespass
For the prosecutor to successfully charge and prosecute you for aggravated assault under Penal Code 601PC, he/she must show that certain elements exist in the offense. These elements are:
The prosecutor must show that you issued credible threats to harm a person. If the prosecutor has evidence to prove a credible threat, it could indicate that you intended to hurt the victim. A credible threat should be either in oral, electronic, or written form.
Intent to Cause Fear
The intent to cause fear must exist in the act for it to be a crime. In addition to showing you issued credible threats, the prosecutor should show you intended for the victim to fear for their life and safety. To establish this element, the court will look at the following facts:
- Your past criminal record or your conduct.
- How the victim reacted to your threats.
- Whether there is a relationship between you and the victim and whether you have had any previous
- The verbal messages you issued to the victim.
The prosecutor must show that:
- Thirty days after you issued the threats, you broke into the victim’s property unlawfully with the plan to execute the threat.
- After the 30 days, you gained entry into the victim’s workplace unlawfully intending to harm the victim.
Serious Bodily Injury
The prosecutor must show that the credible threats contained messages that suggested you would cause the victim serious bodily injury. The prosecutor could offer proof that you had the means of causing severe bodily harm. A severe injury is defined as any injury that impairs your physical condition. The injuries include a broken bone, a severe wound or disfigurement, and loss of consciousness.
For the police to arrest you for aggravated trespass, the officer must either witness you committing the offense, have probable cause, or have an arrest warrant. An arrest warrant gives the police the right to take you into custody. For the judge to issue the police with an arrest warrant, they must have sufficient proof or probable cause to believe you committed aggravated trespass. A police officer or the prosecutor must swear an affidavit to the facts in writing or orally before a judge.
Once the police have the arrest warrant, they will come for you either in your home or your current location then cuff you. During the arrest, the police may also search your property for any evidence to show you intend to carry out the threat against the victim. Ensure you ask the police to show you the search warrant because it is illegal for them to search your property without it. Once cuffed, they will put you in the police cruiser then drive you to the police station for booking.
The police are not mandated to read your Miranda rights during the arrest unless they plan on interrogating you at the arrest location. Miranda rights are your constitutional protected arrests, which are based on the fifth amendment rights against self-incrimination. These rights include:
- You have the right to stay silent.
- If you choose to waive the right and speak to the officer, the prosecutor will use your statements as evidence in a law court.
- You have the right to have legal representation during interrogation and at the trial.
- If you don’t have the capacity or resources to hire an attorney, the government will provide a public defender for you.
- If you decide to talk, you have the right to end the interrogation and exercise the rights without any consequences.
If the prosecutor has not filed any charges against you, your attorney will ask for a writ of habeas corpus. The writ orders the police to bring you to court and determine whether they are unlawfully detaining you.
Common Defenses for Aggravated Trespass
The burden of proof in a criminal case rests with the prosecutor. He/she has to prove beyond a reasonable doubt that you are guilty of aggravated assault. It is not your attorney's responsibility to prove your innocence but to cast doubt on the prosecutor's case. One of the ways to achieve that is using some of the best legal defenses, which are:
Lack of Credible Threat
A credible threat is an essential element for the prosecutor to prove that you violated PC 601. Your defense attorney can show that even though you made a threat to the victim, it was not serious.
Lack of Intent to Cause Harm
Your defense attorney should show that there was no intent to execute the crime. According to the law, you are only guilty if you gained entry into the victim's place intending to harm them.
Lack of Intent to Cause Fear
Your defense attorney should also show that you had the intention of causing unreasonable fear to the victim. The law says that the threats have to be severe enough to cause fear or anxiety to the victim. So, if you made the threat without intending to cause fear, that is not a crime.
Penalties for Aggravated Trespass
Committing aggravated trespass is a serious crime in California with harsh penalties. The crime is considered a wobbler offense. A wobbler offense is a crime that the prosecution charges as either a misdemeanor or a felony, depending on the case's facts. It has summary probation, a $2,000 fine, or a one-year jail term in county jail as a misdemeanor. However, the judge may order you to pay the fine and also serve the jail term.
A felony conviction under California Penal Code 601 PC has felony probation, a $10,000 fine, or a three-year prison term in state prison. The judge may instruct you to serve the prison term and still pay the fine.
Violation of PC 601 might have serious immigration consequences only if you committed it under certain circumstances. The immigration law of the United States warns that being charged and convicted of certain crimes could lead to your deportation or being marked as inadmissible. Among the list of certain crimes is aggravated felony. Remember that depending on individual facts of the case, aggravated trespass may rise to an aggravated felony. So, if convicted, you will be deported or marked as inadmissible.
You can also lose your rights to own/ possess or use a gun if the prosecutor charges the aggravated assault as a felony instead of a misdemeanor. California law has clearly stated that people with aggravated felonies should not possess, use, or own a gun.
Expungement is a request you make to the court to dismiss the charges by first withdrawing either a guilty or no contest plea then entering a not guilty plea. Expungement is a means to release you of all the negative consequences that come with a criminal conviction. The petition can be made by both a person convicted of either a misdemeanor or a felony. However, to successfully qualify for expungement:
- You must complete your probation successfully.
- You must not have served a sentence in state prison.
- You served a sentence in state prison but would have served a county jail sentence under realignment under Proposition 47.1.
- You must not currently be serving a sentence.
- You are not under any criminal charge.
Criminal Court Process
It is your constitutional right to appear before a judge during arraignment within 48hours (excluding public holidays) after your arrest. Here are all the stages of the court process:
Arraignment is your first court appearance where the judge will read all the prosecution's charges against you. The judge will ask whether you understand your rights as he/she reads them to you. If you don't currently have an attorney, the judge will instruct a public defender to represent you at the government's cost.
The judge will also ask how you plead. You can only take one of the three pleas available, the guilty plea, not guilty, and no contest. A guilty and no contest plea have similar consequences; if you choose either, you admit that you committed the aggravated trespass. The next step after that is sentencing, which can be done immediately or at a later date. If you take a no guilty plea, the case will proceed to the next stage.
In a bail hearing, the judge will decide whether to grant you bail then release you as you wait for trial. The judge may also release you on your recognizance. However, the judge may deny you bail if you were violent towards the victim during the aggravated assault commission. The judge is under discretion on the amount of bail to set.
He/she will consider a few facts, such as your ability to pay the bail, your criminal history, whether you can appear in court for the trial, and your current criminal charge. If the judge denies you bail, you will remain in custody as you wait for trial.
In the pretrial stage, your attorney and the prosecutor will exchange information and evidence in a discovery process. Discovery is necessary to prevent any surprises in court. Also, during this stage, your defense attorney and the prosecutor have the opportunity to file any motions they may have.
One of the motions your attorney may file is, motion to suppress evidence. Motions to suppress evidence are necessary to preclude any evidence the police collected when conducting an illegal search. Your attorney may also file a motion to dismiss the case if they feel the prosecutor does not have enough evidence to take the case to trial.
If the prosecutor depended on evidence collected illegally, that could weaken his/her case against you. At this point, the judge may either dismiss the charges or ask the prosecutor to reduce them.
Your attorney may also file a Serna motion, which is a motion to have your charges dismissed because your right to a speedy trial was violated. The motion is commonly filed when the prosecutor took too long to present you before a judge after your arrest.
You can have either a bench trial or jury trial in California. A jury trial involves selected community members who listen to the case’s facts and then give their verdict. On the other hand, a judge presides and gives a verdict of your case after the trial in a bench trial. A trial involves several steps, which are as follows:
Since the burden of proof is with the prosecutor, he/she will start by presenting the opening arguments before the court then followed by your attorney. Opening statements give each side an opportunity to briefly explain to the court what the aggravated trespass is about and the evidence available to prosecute you.
The prosecution will present its witnesses then proceed with direct examination. While examining the witness, the prosecutor will also present evidence from the crime scene. The evidence could be a knife or any other weapon you intended to use to execute the threats against the victim.
Your defense will have an opportunity to cross-examine the witness. Your attorney's job is not to prove your innocence but to cast doubt on the prosecutor's witness and, ultimately, the case. Once your attorney is through with cross-examination, the prosecutor will conduct a redirect examination.
A redirect examination is where the prosecutor asks questions to clarify any confusing statements. After redirection, the prosecution will rest as your attorney presents its version of events. It's upon you and your attorney to decide whether to put up a defense for your case. In most cases, the jury assumes that you are guilty if you fail to provide a defense.
Objections are made during witness examination. During cross-examination, the attorney could object to the manner of examination being beyond the witness's understanding. Some of the objections include hearsay and relevance. If the prosecutor presents evidence that is not relevant to aggravated trespass, your attorney can use this objection. The judge is under discretion to decide on the raised objection. He/she may overrule or sustain it.
Both the prosecutor and your attorney will present their closing arguments before the court. The argument summarizes each attorneys' arguments concerning the case.
The judge will advise the jury on what to do before releasing them to deliberate about the case. Once the jury unanimously agrees, the court will reconvene to hear the verdict. The jury can either find you guilty or not guilty for aggravated trespass. Keep in mind that a not guilty verdict does not mean the jury thinks you are innocent, but rather, the evidence is insufficient to warrant a guilty verdict. You will be released immediately after the not guilty verdict. However, if it is a guilty verdict, you will be taken back to custody and await sentencing at a later date.
You can appeal if you believe certain errors occurred, which contributed to the guilty verdict. Keep in mind that the appellate court only hears cases that have already been tried in a lower court. It does not hear any new evidence; it does not hear witness testimony or retry the case. To have a chance at winning in an appellate court, you must show that certain issues occurred. These issues are:
- Any evidence that was either admitted or excluded improperly.
- The judge gave improper instructions to the jury.
- Whether the prosecutor was unethical at any point during the criminal court process.
- Whether the judge was unfair during the sentencing of the crime.
If the appellate court finds errors in your case, the court will give three remedies: reversal, a new trial, and remand. In reversal, the court dismisses the case and releases you. The court would order a new trial if you were not offered enough assistance. Finally, in remand, the court will present back the case to the trial court, instructing them to fix the error in the case where you were given an illegal sentence.
California Penal Code 602 PC defines trespass as gaining entry without permission or a right to enter or stay or failing to move out of a person's property. The crime is charged as a misdemeanor with a jail term of six months and a $1000 fine.
According to California Penal Code 422 PC, a criminal threat is issuing threats to injure or kill a person. The law further says that it is an offense to issue the threats which result in unreasonable fear to the victim or their families. Issuing criminal threats is a wobbler offense. If convicted for a misdemeanor, you will serve one year in county jail and up to 4 years in state prison for a felony conviction.
Domestic violence is harming or threatening to harm an intimate partner or someone you used to be close with, according to California Penal Code PC 273.5. Domestic violence is a wobbler offense in California. If convicted, you will serve up to one year in jail for a misdemeanor conviction and up to four years in state prison.
California Penal Code 459 PC describes burglary as entering a building or a vehicle with the intent to commit any felony act such as grand theft or petty theft. The main element in the crime is an entry into a building with intent. The crime is prosecuted as either first-degree or second-degree burglary, with first degree having harsher penalties. If convicted of first-degree burglary, you will serve up to six years in state prison.
Stalking means to willfully and maliciously follow, threaten, or harass a person according to California Penal Code 646.9 PC. The law further adds that it is unlawful to commit these acts to the point that the victim is fearful of their life and safety. Penal Code 646.9 PC also includes cyberstalking. Stalking is a wobbler offense. If convicted for a misdemeanor, you will serve one year in county jail and up to five years' in state prison for a felony conviction.
According to California Penal Code 594 PC, vandalism is maliciously destroying or damaging a property belonging to someone else. The crime is a wobbler, which means it can be charged as either a misdemeanor or a felony. As a misdemeanor, the offense carries a one-year jail term and up to three years in state prison for a felony conviction.
Find a Los Angeles Criminal Attorney Near Me
Aggravated trespass is a serious offense with harsh penalties, particularly if charged as a felony. You need to contact an attorney if you or your family members have been charged with violating the Penal Code 601 PC. An experienced attorney will review the facts of the case then determine the best ways to defend you. If you are in Los Angeles, you can contact The Los Angeles Criminal Defense Attorney. Our attorneys are skilled in handling cases involving aggravated trespass. You can reach us at 310-564-2605 for efficient legal representation.