18-4-502. First degree criminal trespass.

Statute text

(1) A person commits the crime of first degree criminal trespass if such person:

(a) Knowingly and unlawfully enters or remains in a dwelling of another; or

(b) Enters any motor vehicle with intent to commit a crime therein.

(2) (a) First degree criminal trespass committed pursuant to subsection (1)(a) of this section is a class 1 misdemeanor, but it is a class 6 felony if the dwelling is inhabited or occupied.

(b) First degree criminal trespass committed pursuant to subsection (1)(b) of this section is a class 1 misdemeanor.

History

Source: L. 71: R&RE, p. 431, 1. C.R.S. 1963: 40-4-502. L. 77: Entire section amended, p. 963, 26, effective July 1. L. 92: Entire section amended, p. 404, 16, effective June 3. L. 93: Entire section amended, p. 1732, 17, effective July 1. L. 98: Entire section amended, p. 1443, 31, effective July 1. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3178, 211, effective March 1, 2022.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 18-4-502 is similar to former 40-3-8 C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

For the treatment of breaking and entering under previous statute, see Howard v. People, 173 Colo. 209, 477 P.2d 378 (1970); Garcia v. People, 174 Colo. 372, 483 P.2d 1347 (1971); People v. Major, 179 Colo. 204, 499 P.2d 1200 (1972).

Under previous statute, entering motor vehicle included box part of pickup. People v. Romero, 179 Colo. 159, 499 P.2d 604 (1972).

Proof of dwelling crucial for first degree trespass. The crucial distinction between first degree criminal trespass and second and third degree is that the prosecution must prove the additional element that the property which was unlawfully entered is a dwelling for first degree trespass. People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978).

"Dwelling" encompasses the entire residential structure, including an attached garage. People v. Hanna, 981 P.2d 627 (Colo. App. 1998).

That the dwelling is "of another" is an essential element of first degree criminal trespass. Pattern jury instruction was incorrect because it omitted that element. People v. Peoples, 8 P.3d 577 (Colo. App. 2000).

"With intent to commit a crime therein" is only an element to first degree criminal trespass of a motor vehicle. It does not apply to first degree criminal trespass of a dwelling. People v. Rodriguez, 43 P.3d 641 (Colo. App. 2001).

Criminal trespass charge is defective if the count failed to identify an ulterior crime. People v. Williams, 961 P.2d 533 (Colo. App. 1997), aff'd, 984 P.2d 56 (Colo. 1999).

Criminal trespass charge is defective in form but not in substance if the count fails to identify an ulterior crime. People v. Williams, 984 P.2d 56 (Colo. 1999).

This section is not divisible as to the ulterior offense. Lujan Jimenez v. Sessions, 893 F.3d 704 (10th Cir. 2018) (overruling United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012)).

Even the absence of a restraining order, an estranged spouse is not privileged or licensed to enter the separate residence of the other spouse so as to create a defense to a charge of first degree criminal trespass. People v. Johnson, 906 P.2d 122 (Colo. 1995).

First degree trespass of motor vehicle. First degree criminal trespass embraces situations where a person knowingly and unlawfully enters a motor vehicle with the intent to steal something of value. Barreras v. People, 636 P.2d 686 (Colo. 1981).

Unlawful entry into semitrailer included in offense. The general assembly intended to make the crime of first degree criminal trespass encompass unlawful entry into a semitrailer for the purpose of theft. People v. Walters, 39 Colo. App. 119, 568 P.2d 61 (1977).

The general assembly intended to include tractor-trailer units as "motor vehicles" for the purpose of criminal trespass. People v. Walters, 39 Colo. App. 119, 568 P.2d 61 (1977).

By entering the open portion of a pickup truck, one "enters [a] motor vehicle" as that phrase is used in this section. People v. Banuelos, 40 Colo. App. 267, 577 P.2d 305 (1977).

It was reversible error for the prosecution to tell the jury that in order to be guilty of first degree criminal trespass of a motor vehicle, the defendant could form unlawful intent at any time, because the prosecutor's argument improperly permitted the jury to adopt a version of the law pursuant to which it could find defendant guilty, regardless of when he formed the intent to steal property from the van. People v. Anderson, 991 P.2d 319 (Colo. App. 1999).

Entry into motor vehicle not required to be "knowing and unlawful", so no error in trial court's refusal to instruct the jury that defendant's entry into a van must have been "unlawful". People v. Anderson, 991 P.2d 319 (Colo. App. 1999).

"Entry" into a motor vehicle requires an intrusion into the protected area of the motor vehicle. Entry into the door jamb portion of the car for the purpose of opening the car door without a key does not cross the threshold into the protected premises and is not sufficient to constitute an "entry" for purposes of the statute. People v. Rhodus, 2012 COA 127, 303 P.3d 117.

Conviction of being accessory to first degree criminal trespass requires a showing that the accused knew that the principal had committed an unlawful trespass in acquiring the stolen property. Barreras v. People, 636 P.2d 686 (Colo. 1981).

First degree criminal trespass is a lesser included offense of second degree burglary. Both first degree criminal trespass and second degree burglary are committed by knowingly and unlawfully entering a dwelling; second degree burglary differs only because it requires the intent to commit a crime upon entry. People v. Snelling, 2022 COA 116M, 523 P.3d 477 (concluding that People v. Garcia, 920 P.2d 878 (Colo. App. 1996), rev'd on other grounds, 940 P.2d 357 (Colo. 1997), annotated below, has been implicitly overruled, and disagreeing with People v. Whiteaker, 2022 COA 84, 519 P.3d 1127).

First degree criminal trespass is not a lesser included offense of second degree burglary. People v. Garcia, 920 P.2d 878 (Colo. App. 1996), rev'd on other grounds, 940 P.2d 357 (Colo. 1997), recognized as implicitly overruled in People v. Snelling, 2022 COA 116M, 523 P.3d 477, annotated above; People v. Whiteaker, 2022 COA 84, 519 P.3d 1127 (following Garcia, which the supreme court has not explicitly overruled).

First degree criminal trespass is not a lesser included offense of first degree burglary. However, it is a lesser non-included offense, and the trial court may instruct a jury on such offense over the objection of the defendant if the charging document provides notice that defendant might have to defend against that charge. People v. Satre, 950 P.2d 667 (Colo. App. 1997). But see People v. Gillis, 2020 COA 68, 471 P.3d 1197, annotated below.

Attempted first degree criminal trespass may be a lesser included offense to attempted second degree burglary. People v. Austin, 799 P.2d 408 (Colo. App. 1990).

First degree criminal trespass is a lesser included offense of first degree burglary. People v. Gillis, 2020 COA 68, 471 P.3d 1197. But see People v. Satre, 950 P.2d 667 (Colo. App. 1997), annotated above.

Third degree criminal trespass is not a lesser included offense of attempted first degree criminal trespass. While unlawful entry upon the premises is a necessary element of the completed offense of third degree criminal trespass, it is not a necessary element of attempted first degree criminal trespass. People v. Griffith, 58 P.3d 1111 (Colo. App. 2002).

First degree criminal trespass is distinct from misdemeanor theft. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).

Evidence sufficient for a finding of intent under this section. People v. Sorber, 179 Colo. 434, 501 P.2d 121 (1972).

A conviction for first degree criminal trespass is not a crime involving moral turpitude. Lujan Jimenez v. Sessions, 893 F.3d 704 (10th Cir. 2018).

Conviction for residential criminal trespass is a crime of violence and thus an aggravated felony qualifying defendant for an increased sentence under the United States sentencing guidelines. United States v. Venegas-Ornelas, 348 F.3d 1273 (10th Cir. 2003).

Although first degree criminal trespass may not be a per se grave or serious offense for proportionality review purposes, the circumstances of a particular case can make the conviction a grave and serious offense. The harm caused to the victim in this case made the conviction grave and serious. People v. Green, 2012 COA 68M, 296 P.3d 260.

District court did not err in imposing sentencing enhancement under the sentencing guidelines. This section, under which defendant was sentenced, is ambiguous because it reaches a broad range of conduct, some of which merits the enhancement and some of which does not. The charging document and plea agreement underlying defendant's prior conviction reveal, however, that defendant necessarily admitted all the elements of the generic offense of attempt to commit theft. Therefore, the district court did not err in imposing the sentence enhancement under the United States sentencing guidelines. United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012), overruled in part in Lujan Jimenez v. Sessions, 893 F.3d 704 (10th Cir. 2018).

Plain language of statute means that a defendant entering a motor vehicle with the intent to commit any crime inside the motor vehicle commits criminal trespass. People v. Wentling, 2015 COA 172, 409 P.3d 411.

Applied in People in Interest of D.G.P., 194 Colo. 238, 570 P.2d 1293 (1977); People v. Newman, 195 Colo. 367, 578 P.2d 1051 (1978); People v. Huston, 197 Colo. 125, 589 P.2d 1367 (1979); People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979); People v. Horne, 619 P.2d 53 (Colo. 1980); Bollier v. People, 635 P.2d 543 (Colo. 1981); People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Norman, 703 P.2d 1261 (Colo. 1985).