People v. Harper

269 Cal.App.2d 221 (1969) THE PEOPLE, Plaintiff and Respondent,

v.

WILLIAM ROGER HARPER, Defendant and Appellant.

Crim. No. 14485. California Court of Appeals. Second Dist., Div. Five.

Jan. 28, 1969. John J. Hunter, under appointment by the Court of Appeal, and Roberts, Hansen, Carmack & Brown for Defendant and Appellant.

Thomas C. Lynch, Attorney General, Elizabeth Miller and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

STEPHENS, Acting P. J.

By information, defendant was charged with a violation of section 459 of the Penal Code (burglary). Defendant pleaded not guilty, waived jury trial, and submitted the cause on the preliminary hearing transcript plus his testimony. The defendant was found not guilty of the charge of burglary, but guilty of "a lesser and necessarily included offense in Section 459 Penal Code," criminal trespass, in violation of section 602, subdivision (l) of the Penal Code. [fn. 1] Appeal is from the judgment.

[1] We need not state the facts since reversal is required for error of law, the crime of criminal trespass. ( 692, subd. (l), Pen. Code) [fn. 2] not being a lesser included offense [fn. 3] in a charge of violation of section 459 of the Penal Code. [fn. 4]

Criminal trespass requires the occupation of real property or structures, as well as the entry. To occupy means a non-transient, continuous type of possession. (People v. Wilkinson (App. Dept., Superior Court) 248 Cal.App.2d Supp. 906, 910 [56 Cal.Rptr. 261].) It needs no authority to convince us that a burglar has no intention except the most transient of trespasses. There is a further element in Penal Code section [223] 602, subdivision (l) which cannot be an element of Penal Code section 459, and that is that criminal trespass may be upon vacant property, while burglary is limited to the entry of a structure or other specified enclosure. [fn. 5]

The judgment is reversed.

Reppy, J., concurred.