Return to CALJIC Part 14-17 – Contents
F 14.00 n1 Theft: Lesser Included Of Robbery
Theft is lesser included offense of robbery which includes the added element of force or fear. (People v. Melton (88) 44 C3d 713, 746 [244 CR 867]; see also People v. Reeves (2001) 91 CA4th 14, 53 [109 CR2d 728] [court erred in failing to instruct on attempted theft as LIO of attempted robbery where defendant moved property in the victim’s house prior to waking and assaulting her]; but see People v. Cooksey (2002) 95 CA4th 1407 [116 CR2d 1] [perpetrator’s two-minute struggle with robbery victim precluded instruction on grand theft person (PC 487(c))].)
F 14.00 n2 Theft: After Acquired Intent (PC 484 & PC 487).
If intent to steal arose after the victim was assaulted the force or fear element of robbery is absent and the taking is theft. (People v. Turner (90) 50 C3d 668, 688 [268 CR 706]; People v. Webster (91) 54 C3d 411, 443-44 [285 CR 31].)
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n3 Theft: Propriety Of Multiple Conviction (PC 484 & PC 487).
See FORECITE F 17.02 n3.
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n4 Theft: Claim Of Right Defense To Theft (PC 484 & PC 487).
Claim of right is a defense to theft. (See FORECITE F 9.40a–c.)
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n5 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 (94) 22 CA4th 528, 531 [27 CR2d 369].)
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n6 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 (63) 217 CA2d 11, 18; People v. Traster (2003) 111 CA4th 1377, 1387; CJ 14.05; see also FORECITE F 14.00 n16.
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 (76) 64 CA3d Supp 43, 46 [135 CR 337].) 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 (98) 19 C4th 302 [79 CR2d 295] [attempt to return unpurchased merchandise for refund is theft].)
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n7 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 (93) 20 CA4th 171, 176 [25 CR2d 179].) 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 (76) 64 CA3d Supp 43, 47 [135 CR 337].)
[Research Note: See FORECITE BIBLIO 14.00]
F 14.00 n8 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 (84) 155 CA3d 1103, 1145 [203 CR 196].) 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]
F 14.00 n9 Victim’s Retention of Security Interest In Stolen Goods Does Not Preclude Perpetrator’s Conviction For Theft By False Pretenses.
People v. Counts (95) 31 CA4th 785, 789-90 [37 CR2d 425].
F 14.00 n10 No Completed Theft When Store Personnel Consent To Taking Merchandise Outside.
The crime of theft requires an unlawful taking and asportation of the property of another (PC 484; People v. Sally (93) 12 CA4th 1621, 1627 [16 CR2d 161].) “The taking … must be against the will of the owner or at least without his consent.” (People v. Edwards (25) 72 CA 102, 113 [236 P 944]; 2 Witkin & Epstein, Cal. Criminal Law (2d Ed. 1989) Crimes Against Property, § 574, pp. 651-52.)
Accordingly, when store personnel actively permit the processing of a sales transaction with a stolen credit card for the purpose of arresting the defendant outside the store with the merchandise, the store personnel have effectively consented to the taking and, therefore, the crime committed is only attempted theft, not a completed theft. (But see People v. Davis (98) 19 C4th 301 [79 CR2d 295] [attempt to return unpurchased merchandise for refund is theft].) [See Brief Bank # B-693 and Opinion Bank # O-207 for the briefing and opinion in People v. Finau UNPUBLISHED (11/22/95, A068092) on this issue.]
F 14.00 n11 Theft Of Community Property.
[See FORECITE F 9.40 n16.]
F 14.00 n12 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 thirty-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 [11 P 817]. In People v. Cain (1907) 7 CA 163, 167 [93 P 1037], 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 (41) 45 CA2d 345, 351 [114 P2d 71].)
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 (80) 27 C3d 303, 315 fn 5 [165 CR 289]; People v. Turner (68) 267 CA2d 440, 443-44 [73 CR 263].) 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 don’t have a right to have it permanently and thus, can’t 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 (92) 8 CA4th 1092, 1099 [10 CR2d 821]; People v. Brady (91) 234 CA3d 954, 957 [286 CR 19].) 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 (84) 156 CA3d 268, 171 [202 CR 732]; see In re Joiner (60) 180 CA2d 250, 253 [4 CR 667]). 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.
F 14.00 n13 Theft: Making An Unauthorized Copy Of A Key.
People v. Kwok (98) 63 CA4th 1236, 1251 [75 CR2d 40] 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.)
F 14.00 n14 Theft Of Real Property Requires Defendant To Have Made False Representation To The Owner (PC 484(a) & PC 487).
In People v. Sanders (98) 67 CA4th 1403 [79 CR2d 806] 98 DAR 12082 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 (62) 204 CA2d 652, 668-69 [22 CR 508].) 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.)
F 14.00 n15 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 (79) 99 CA3d Supp 1 [160 CR 692] (FORECITE F 9.40a). [See Opinion Bank # O-261 for a copy of the Brown opinion.]
F 14.00 n16 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 (50) 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, section 8.7, page 396.)
F 14.00a
Theft By Appropriation Of Lost Property
*Modify CJ 14.00 to provide as follows:
Defendant is accused [in Count[s] _____] of having committed the crime of theft by appropriating lost property, a violation of section 485 of the Penal Code.
Every person who finds lost property under circumstances which give [him] [her] knowledge of, or means of inquiry as to, the true owner, and who, with intent to permanently deprive the owner of the property, appropriates such property to [his] [her] own use, or to the use of another person not entitled to the property, without first making reasonable and just efforts to find the owner and to restore the property to [him] [her], is guilty of theft. The defendant may not be convicted of theft unless the prosecution proves beyond a reasonable doubt each of the following elements:
1. The defendant possessed property which had been lost by its owner;
2. The defendant knew the identity of the true owner of the property or had the means of identifying the true owner by the exercise of reasonable efforts;
3. The defendant failed to make reasonable efforts to find the owner and to restore the property to [him] [her]; and
4. The defendant appropriated the property to [his] [her] own use or to the use of another person not entitled to the property;
5. At the time the defendant appropriated the property [he] [she] had the specific intent to deprive the owner permanently of the property.
Points and Authorities
Although PC 485 does not expressly include the requirement of a specific intent to steal, it has long been recognized that a person cannot be guilty of theft, on a lost property theory under PC 485, unless he or she acts with criminal intent. (People v. Devine (1892) 95 C 227 [30 P 378].) “One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain [the true owner]; but so long as he believes it is his own, he cannot feloniously steal it.” (Devine, 95 C at 221.) Hence, the jury must be instructed on the necessary larcenous intent: to permanently deprive the owner of the property.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES: Definition of “Lost.” The term “lost” as used in PC 485 appears to have its ordinary legal sense which simply means that the true owner doesn’t know where to find the property. (People v. Stay (71) 19 CA3d 166, 172-173 [96 CR 651].)
Conflict with CC 2080. People v. Stay (71) 19 CA3d 166 [96 CR 651], recognized a possible conflict between PC 485 and CC 2080 which provides that the finder of a lost thing is considered a depositary for the owner with the rights and obligations of a depositary for hire. CC 2080 is a more recent enactment than PC 485 and the court in Stay assumed arguendo that
CC 2080 controls to the extent that the sections may differ. However, in Stay the court concluded that neither section applied because the property was not “lost.”
Prosecution under PC 485 for misdelivered funds. PC 485 was enacted in 1872 and has historically been used to prosecute cattle rustlers or other persons who capture stray livestock or other animals and who fail to return the animals to the true owner. (See, e.g., People v. Moses (90) 217 CA3d 1245, 1252-53 [266 CR 538] [stray heifer].) In the case of misdelivered money, the prosecution normally is under PC 484 on a theory of false pretenses or embezzlement rather than PC 485. (See, People v. Dubrin (65) 232 CA2d 674, 678-79 [43 CR 60]; People v. Newman (75) 49 CA3d 426, 431 [122 CR 455]; cf. People v. Counts (95) 31 CA4th 785, 793 [37 CR 425].) If conviction for misdelivered money is sought under PC 485, there may be an issue as to whether such misdelivered money is really lost. (See, People v. Szele UNPUBLISHED (3/27/97, AO73685). [The unpublished opinion and briefing in Czele is available to FORECITE subscribers. Ask for Brief Bank # B-735 and Opinion Bank # O-231.]
