SERIES 1800 THEFT AND EXTORTION
F 1800 NOTES
TABLE OF CONTENTS
F 1800 Note 1 Theft By Larceny—CALCRIM Cross-References And Research Notes
F 1800 Note 2 Theft: Claim Of Right Defense To Theft (PC 484 & PC 487)
F 1800 Note 3 Theft: General Verdict Insufficient To Sustain Conviction Where Jury Not Instructed On Theory Shown By The Evidence (PC 484 & PC 487)
F 1800 Note 4 Theft: Distinction Between Larceny And Theft By False Pretenses (PC 484 & PC 487)
F 1800 Note 5 Attempted Theft By False Pretenses As LIO Of Theft (PC 484 & PC 487)
F 1800 Note 6 Theft: Multiple Theories Shown At Trial (PC 484 & PC 487)
F 1800 Note 7 Victim’s Retention of Security Interest In Stolen Goods Does Not Preclude Perpetrator’s Conviction For Theft By False Pretenses
F 1800 Note 8 Theft Of Community Property
F 1800 Note 9 Theft: Taking Of Impounded Vehicle
F 1800 Note 10 Theft: Making An Unauthorized Copy Of A Key
F 1800 Note 11 Theft Of Real Property Requires Defendant To Have Made False Representation To The Owner (PC 484(a) & PC 487)
F 1800 Note 12 Theft: Abandoned Property
F 1800 Note 13 Theft: Distinction Between Theft By False Pretenses And Theft By Trick and Device
F 1800 Note 14 Theft By Larceny: Taking For Purpose Of Obtaining Refund Is Completed Theft
F 1800 Note 15 Larceny: Defendant’s Poverty Or Financial Condition As Evidence Of Motive
F 1800 Note 16 Financial Situation Of Defendant Less Relevant When Crime Primarily Involves Violence
F 1800 Note 17 Theft: Propriety Of Multiple Conviction (PC 484 & PC 487)
F 1800 Note 18 Various Forms Of Larceny And Embezzlement Are All Crimes Of Theft
Return to Series 1800 Table of Contents.
F 1800 Note 1 Theft By Larceny—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1801 [Theft: Degrees]
CALCRIM 1802 [Theft: As Part of Overall Plan]
CALCRIM 1803 [Theft: By Employee or Agent]
CALCRIM 1804 [Theft by False Pretense]
CALCRIM 1805 [Theft by Trick]
CALCRIM 1806 [Theft by Embezzlement]
CALCRIM 1807 [Theft From Elder or Dependent Adult]
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
F 1800 Note 2 Theft: Claim Of Right Defense To Theft (PC 484 & PC 487)
Claim of right is a defense to theft. (See FORECITE F 1863.)
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n4.
F 1800 Note 3 Theft: General Verdict Insufficient To Sustain Conviction Where Jury Not Instructed On Theory Shown By The Evidence (PC 484 & PC 487)
Even though a general verdict of theft can be sustained if the evidence proves any type of theft, “the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict.” (People v. Curtin (1994) 22 CA4th 528, 531.)
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n5.
F 1800 Note 4 Theft: Distinction Between Larceny And Theft By False Pretenses(PC 484 & PC 487)
The elements of theft by trick and device are: “(1) the obtaining of the possession of the property of another by some trick or device; (2) the intent by the person so obtaining possession to convert it to his own use and to permanently deprive the owner of it; and (3) that the owner, although parting with possession to such person, does not intend to transfer his title to that person.” (People v. Riley (1963) 217 CA2d 11, 18; People v. Traster (2003) 111 CA4th 1377, 1387; CJ 14.05; see also FORECITE F 14.00 n6.
An essential element of theft by false pretenses is that the owner “must have been induced to part with [the] property in reliance on the false representation.” (People v. Lorenzo (1976) 64 CA3d Supp 43, 46.) Absent reliance on the pretense—e.g., where the owner was not actually deceived—the offense can be no more than attempted theft. (Lorenzo, 64 CA3d Supp at 47; but see People v. Davis (1998) 19 C4th 302 [attempt to return unpurchased merchandise for refund is theft].)
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n6.
F 1800 Note 5 Attempted Theft By False Pretenses As LIO Of Theft (PC 484 & PC 487)
A charge of larceny or attempted larceny may be sustained based upon removal of merchandise from a store shelf and asportation of that merchandise with the intent to steal it. (People v. Mann DEPUBLISHED (1993) 20 CA4th 171, 17679].) However, if the defendant fraudulently attempts to obtain a refund for the merchandise—claiming that it was purchased—then the jury must be instructed upon the lesser included offense of attempted theft by false pretenses. (Mann, 20 CA4th at 178.)
An essential element of theft by false pretenses is that the owner “must have been induced to part with [the] property in reliance on the false representation.” (See FORECITE F 14.00 n6.) Absent reliance on the pretense, the offense can be no more than attempted theft. (People v. Lorenzo (1976) 64 CA3d Supp 43, 47.)
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n7.
F 1800 Note 6 Theft: Multiple Theories Shown At Trial (PC 484 & PC 487)
A theft conviction will be sustained when challenged for insufficiency of the evidence so long as any one of the several types of theft is shown (People v. Smith (1984) 155 CA3d 1103, 1145); however, this rule is limited to a consideration of the theft theories which were presented to the jury. (Ibid.)
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n8.
F 1800 Note 7 Victim’s Retention of Security Interest In Stolen Goods Does Not Preclude Perpetrator’s Conviction For Theft By False Pretenses
People v. Counts (1995) 31 CA4th 785, 789-90.
CALJIC NOTE: See FORECITE F 14.00 n9.
F 1800 Note 8 Theft Of Community Property
[See FORECITE F 1600 Note 16.]
CALJIC NOTE: See FORECITE F 14.00 n11.
F 1800 Note 9 Theft: Taking Of Impounded Vehicle
An Attorney General’s Opinion concluded that when the owner of a vehicle has been arrested for driving without a valid license and the vehicle has been impounded, the owner may be guilty of grand theft if the vehicle is taken from the impounding agency’s custody without permission prior to the expiration of the 30-day impoundment period. (80 Ops.Cal.Atty.Gen. 142 (June 6, 1997) [No. 97-202].)
The A.G. relied on People v. Stone (1860) 16 C 369 in which the possession of certain personal property was given by the owner to his creditor until his debt was paid. In that case, the Supreme Court held that the owner could be found guilty of larceny if he took back the property without the consent of the creditor prior to the time the debt was paid. The court ruled similarly in People v. Thompson (1868) 34 C 671, 672 and People v. Jones (1886) 71 C 89, 92. In People v. Cain (1907) 7 CA 163, 167, the court declared that the phrase “personal property of another” as used in PC 484, means “property in the possession of another who is entitled as a bailee, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership” defined by CC 679. The court concluded that the taking of property by the general owner thereof from the possession of one who rightfully holds it as bailee or otherwise for benefit, with the intent to charge such bailee with the value thereof, or deprive him of the benefit, constitutes larceny. (Accord, People v. Photo (1941) 45 CA2d 345, 351.)
However, there are problems with the A.G.’s analysis. First, larceny, unlike embezzlement or false pretenses, requires an intent to permanently deprive the owner of his/her property. (People v. Thompson (1980) 27 C3d 303, 315 fn 5; People v. Turner (1968) 267 CA2d 440, 443-44.) The question is, how can a defendant be said to have had an intent to deprive someone permanently of property when that person had only a temporary right to the property? Since permanent and temporary are opposite, if someone has a right to have something temporarily, they do not have a right to have it permanently and thus, cannot be deprived of it permanently.
The second problem with the analysis is that larceny requires a taking with the intent to deprive the owner permanently of the property. (People v. Edwards (1992) 8 CA4th 1092, 1099; People v. Brady (1991) 234 CA3d 954, 957.) VC 14602.6 does not create an ownership interest in the impound agency, the State, county or anyone other than the owner. It gives the impound agency a statutory right to keep the car for 30 days, nothing more. The owner is free to transfer title to the car, mortgage it, sell it, give it to charity, or anything else.
The A.G. acknowledged that the taking of a vehicle from the lawful possession of another may constitute different crimes depending on the circumstances, especially the intent of the person taking the vehicle (i.e., VC 10851, PC 459, CC 3070(b)). The A.G. also recognized that “‘[a] settled rule of statutory construction precludes prosecution under a general statute when a more specific one describes the conduct involved. [Citations.]” (See Finn v. Superior Court (1984) 156 CA3d 268, 171; see In re Joiner (1960) 180 CA2d 250, 253.) However, the A.G. incorrectly concluded that there were no facts establishing an offense under any other criminal statute, and accordingly, the general statute making grand theft a crime would be applicable here.
Contrary to the Attorney General’s Opinion, there is a statute directly on point: PC 102 [retaking goods from custody of officer]. PC 102 (enacted 1872) states that “every person who willfully … takes or attempts to take, … from the custody of any officer or person, any personal property which officer or person has in charge under any process of law, is guilty of a misdemeanor.” A special law is deemed an exception to a general one and since PC 102 more specifically describes the conduct involved, it should be the statute applicable to the above scenario.
CALJIC NOTE: See FORECITE F 14.00 n12.
F 1800 Note 10 Theft: Making An Unauthorized Copy Of A Key
People v. Kwok (1998) 63 CA4th 1236, 1251 held that making an unauthorized copy of a key constitutes theft. (See also Dreiman v. State (Wyo. 1992) 825 P2d 758.) Hence, the temporary taking of either a key or the lock itself for the purpose of making an unauthorized copy of the key is theft; similarly, copying of unlisted phone numbers, social security numbers, insurance policy numbers, access codes, etc., also constitute theft. (Dreiman v. State, supra, 825 P2d at 761-62; see also Collins v. State (Nev. 1997) 946 P2d 1055, 1059-60.)
CALJIC NOTE: See FORECITE F 14.00 n13.
F 1800 Note 11Theft Of Real Property Requires Defendant To Have Made False Representation To The Owner (PC 484(a) & PC 487)
In People v. Sanders (1998) 67 CA4th 1403, the defendant was convicted of grand theft of real property after forging deeds purporting to convey title to several parcels of property to him. In reversing the conviction, the Sanders court concluded that PC 484(a) defines the crime of theft of real property by false pretenses. Proof of that crime requires the prosecution to establish (1) that the defendant made a false pretense or representation; (2) the defendant did so with the intent to defraud the owner of the property; and (3) the owner must, in fact, be defrauded. Further, the false pretense or representation must have materially influenced the owner to part with his property, even though the false pretense need not be the sole inducing cause. (Sanders, 67 CA4th at 1412; see also Callan v. Superior Court (1962) 204 CA2d 652, 668-69.) Without a false pretense or representation, there was no theft, as the recording of a forged deed does not convey title. (Sanders, 67 CA4th at 1413.)
CALJIC NOTE: See FORECITE F 14.00 n14.
F 1800 Note 12 Theft: Abandoned Property
While the finder of lost property has an obligation to attempt to ascertain who the owner is (CC 2080) and can be charged with theft for failure to do so (PC 485), that obligation is not imposed on the finder of abandoned property. (CC 2080.7.) In People v. Brown UNPUBLISHED (12/16/99, H018501), the defendant was charged with taking a car that he believed was abandoned. The defendant’s conviction for receiving stolen property was reversed for failure to instruct on mistake of fact (CJ 4.35) and claim of right based on People v. Navarro (1979) 99 CA3d Supp 1 (FORECITE F 9.40a). [See Opinion Bank # O-261for a copy of the Brown opinion.]
CALJIC NOTE: See FORECITE F 14.00 n15.
F 1800 Note 13 Theft: Distinction Between Theft By False Pretenses And Theft By Trick and Device
Because these crimes share so many similar characteristics, “[t]he distinction between larceny and false pretenses sometimes depends on a close analysis of facts and legal principles.” (People v. Delbos (1905) 146 C 734, 736.) If “title still remains in the owner, larceny is established: while the crime is false pretenses, if the title, as well as the possession, is absolutely parted with.” (Delbos, supra, 146 C at 737.) In other words, if the defendant obtains possession of property for a specific or special purpose, the owner does not relinquish title and the crime committed is larceny by trick. On the other hand, it is theft by false pretenses if the owner of the property gives the property to the defendant or another he controls intending the defendant or this other entity to become the unconditional and unrestricted owner. (People v. Jones (1950) 36 C2d 373; People v. Traster (2003) 111 CA4th 1377, 1387-88; 2 Witkin and Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, section 64, page 92; 2 LaFave and Scott, Substantive Criminal Law (1986) Crimes Relating to Property, §8.7, page 396.)
CALJIC NOTE: See FORECITE F 14.00 n16.
F 1800 Note 14 Theft By Larceny: Taking For Purpose Of Obtaining Refund Is Completed Theft
People v. Davis (1998) 19 C4th 301 held that a defendant who takes an item from a store display with the intent to claim its ownership and restore it only on condition that the store pays the defendant a “refund” must be deemed to intend to permanently deprive the store of the item within the meaning of the law of larceny.” (See FORECITE F 14.02d for proposed instruction on this point.)
People v. Shannon (1998) 66 CA4th 649 held that the defendant was properly convicted of completed theft rather than attempted theft by removing clothes from the rack in order to fraudulently resell them to the store.
CALJIC NOTE: See FORECITE F 14.02 n1.
F 1800 Note 15 Larceny: Defendant’s Poverty Or Financial Condition As Evidence Of Motive
“Poverty as proof of motive has in many cases little tendency to make theft more probable. Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.” (U.S. v. Mitchell (9th Cir. 1999) 172 F3d 1104, 1109; People v. Wilson (1992) 3 C4th 926, 939 [per se inadmissible under EC 352 except on rebuttal].)
“The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly those of violence.” (Wigmore, Evidence, 392 (Chadbourne Rev. 1979).)
“There is a distinction between an interest, in the sense that it is anyone’s interest to be richer rather than poorer, and an inclination. A mere interest, unconnected with inclination, desperation, or other evidence that the person was likely to commit the crime does not add much, in most cases, to the probability that the defendant committed a crime. If people commonly committed crimes whenever they needed money and could get it by crime, no company would sell life insurance. There is usually a moral disinclination and an interest in avoiding punishment that constrains people from committing crimes out of mere financial interest. The problem with poverty evidence without more to show motive is not just that it is unfair to poor people, as Wigmore says, but that it does not prove much, because almost everyone poorer now has a motive to get more money. And most people, rich or poor, do not steal to get it.” (Ibid.)
In sum, evidence of the defendant’s financial condition should be per se inadmissible unless offered in rebuttal. (People v. Wilson, 3 C4th at 939.)
CALJIC NOTE: See FORECITE F 14.02 n2.
F 1800 Note 16 Financial Situation Of Defendant Less Relevant When Crime Primarily Involves Violence
The admissibility of the defendant’s financial condition is generally discussed in FORECITE F 14.02 n2. However, regardless of the relevance of such evidence in a “merely peculative crime” (see 2 Wigmore, Evidence, 3rd Ed. §392, p. 342), it is of even less probative value and has greater prejudicial effect when the crime is primarily one of violence. [See Brief Bank # B-791 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 14.02 n3.
F 1800 Note 17 Theft: Propriety Of Multiple Conviction (PC 484 & PC 487)
See FORECITE F 3515.2 Note 1.
[Research Note: See FORECITE BIBLIO 14.00.]
CALJIC NOTE: See FORECITE F 14.00 n3.
F 1800 Note 18 Various Forms Of Larceny And Embezzlement Are All Crimes Of Theft
As with larceny by trick and obtaining property by false pretenses, embezzlement and grand theft by larceny are “aimed at different criminal acquisitive techniques … [but,] with other larcenous crimes, have been consolidated into the single crime of theft (… § 484) … .”]
“Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” (PC 490a.) (People v. Ashley (1954) 42 C2d 246, 258; see also People v. Fenderson (2010) 188 CA4th 625, 641.)