Brief Bank # B-693 (Re: F 14.00 n10 [No Completed Theft When Store Personnel Consent To Taking Merchandise Outside].)
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Date of Brief: June 1995
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FIVE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________/
APPEAL FROM
SUPERIOR COURT OF THE COUNTY OF CONTRA COSTA
HONORABLE ALLEN L. NORRIS
APPELLANT’S OPENING BRIEF
Assisted Appeal, First District Appellate Project
William M. Balin
Attorney at Law
345 Franklin Street
San Francisco, CA 94102
(415) 241-7360
Attorney for Defendant and Appellant
JOHN DOE
By appointment of the Court of Appeal,
under the First District Appellate Project’s
Assisted Case System
ARGUMENT
I. THE REAL CRIME WAS ATTEMPTED THEFT OF THE MERCHANDISE.
The testimony of the store personnel is clear: they determined that appellant was not the person whose name appeared on the card and that he was not authorized to use it, they let appellant use the card, and then they arrested him. Under these circumstances there can be no completed theft; it can only be an attempted theft. This is so because the store consented to have appellant remove the articles of clothing from the store, even if only to arrest him outside its doors. (2 Witkin and Epstein, California Criminal Law (2d ed., 1988); People v. Edwards (1925) 72 Cal.App. 102, 113.)
II. THE COURT HAD TO INSTRUCT THE JURY ON THEFT BY FALSE PRETENSES.
Although a jury may convict a defendant of theft on evidence which establishes any of the different types of theft (by larceny, trick or device, embezzlement or false pretenses; Penal Code Section 484; CALJIC 14.00), “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 Cal.App.4th 528, 531.) The evidence in this case clearly shows that theft by false pretenses, and not theft by larceny, was the only potential theft charge which could be made in this case.
In Curtin, the defendant went to a bank and cashed a check made out to another depositor at that same bank. In fact, the defendant was neither the depositor nor the named payee of the check. The person whose account on which the check was drawn testified that he did not sign the check nor did he authorize the defendant to sign it.
The trial court only instructed the jury on theft by trick or device. The Curtin court held that the elements of the two thefts were different, and the jury had to be instructed on the elements of the type of theft shown by the evidence. (Id., 22 Cal.App.4th at 531.) In the present case the type of theft alleged was theft by false pretenses, and not theft by larceny. The court’s failure to instruct on this offense was therefore error.
While the defendant in Curtin presented a stolen check in order to make a deposit, here appellant presented another’s credit card to pay for clothes. In both cases the defendants signed others’ names to the necessary papers in order to obtain either money or goods.
Curtin is persuasive authority for the conclusion that the type of theft alleged in the present case was theft by false pretenses. While both defendant in Curtin and appellant here used a trick or device to obtain the money or goods, both attempted to obtain both title and possession by their tricks or devices. Because theft by trick or device deals with obtaining possession only (Curtin, supra, 22 Cal.App.4th at 531; CALJIC 14.05; Penal C. §487), the only applicable type of theft alleged in the present case is theft by false pretenses.
Appellant has previously demonstrated that the theft alleged in this case was not theft by larceny, because that theft cannot be accomplished when the victim consents to the taking. Clearly, theft by larceny is only one type of theft, and not, as the court determined, a catchall phrase for all types of theft. (CALJIC 14.00.) Here Macy’s knew that the credit card was stolen when they decided to proceed with the transaction; thus Macy’s consented to the taking. “The taking. . .must be against the will of the owner or at least without his consent.” (People v. Edwards, supra, 72 Cal.App. at 113.) Edwards clearly holds that the crime of obtaining property by false pretenses is not the equivalent of theft by larceny. (Edwards, supra, 72 Cal.App. at 113.)
Thus, the only type of theft with which appellant could be charged was theft by false pretenses. The court was required to instruct the jury on the type of theft shown by the evidence, especially where, as here, the crime has “additional required substantive elements, as well as a special corroboration requirement.” (People v. Curtin, supra, 22 Cal.App.4th at 531.) Defense counsel’s confusion on this point cannot eliminate the duty of the court to instruct on the appropriate crime.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FIVE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
________________________________________/
APPEAL FROM
SUPERIOR COURT OF THE COUNTY OF CONTRA COSTA
HONORABLE ALLEN L. NORRIS
APPELLANT’S REPLY BRIEF
Assisted Appeal, First District Appellate Project
William M. Balin
Attorney at Law
345 Franklin Street
San Francisco, CA 94102
Telephone: (415) 241-7360
Attorney for Defendant and
Appellant JOHN DOE
By appointment of the Court of Appeal,
under the First District Appellate Project’s
Assisted Case System
II. THE EVIDENCE AND AUTHORITY ESTABLISH THAT ONLY AN ATTEMPTED THEFT, AND NOT A COMPLETED THEFT, OCCURRED.
A. The Facts Establish that Consent Was Given.
Respondent argues inconsistent positions in its opposition. First, respondent says, the crime of theft by larceny was completed. Respondent argues that the theft was completed because there was no evidence when the Macy’s security personnel learned that appellant was not the named person on the card and that he did not have permission to use it. (RB at 6-7.) Respondent further claims that the sales person, Ms. T, only acted in a passive way and did not give the items to appellant. If this were true, of course, this would establish that the crime of theft by false pretenses had been completed.
Respondent’s characterization of the evidence is misleading. First, it is clear that Ms. T completed the transaction with appellant. This was a completed sale; there is no evidence that appellant shoplifted. Ms. T testified that appellant presented three items to her for purchase along with a credit card, that she asked appellant for a photo identification which appellant could not produce for her, and that she then telephoned security. (RT at 51.) Upon receiving the go-ahead from security she removed the sensor from the clothing. (RT at 53-54.) She thought that appellant put more items on the counter at which time she entered the merchandise into the computer and scanned the tags on the clothing. (RT 54-55.) She removed the sensors from the rest of the clothing, completed the transaction and handed the card back to appellant. (RT 51-52, 59-60.) The sales receipt evidencing the completed transaction was admitted into evidence as People’s Exhibit 3, and an enlargement of the receipt was entered into evidence as Exhibit 3A. (RT 61-62 and 89.) The Macy’s goods were recovered from inside a Macy’s bag (RT 35-36), indicating that Ms. T had put them there and handed it to appellant.
Even under the authorities cited by respondent, the acts of Macy’s personnel constitute the giving of consent to appellant to receive and remove the clothing. For example, in People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43, 47, the defendant was observed switching price tags on merchandise and then purchasing it for less than its correct price. The court held that because the manager who observed the price tag switching allowed the defendant to complete the transaction, the offense could only be attempted theft, and not theft.
