Brief Bank # B-715 (Re: F 9.40 n16 [Theft Of Community Property].)
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I
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
APPELLANT’S ROBBERY CONVICTION
A. Factual and Procedural Background
Appellant was charged with one count of robbery. The property $280 in cash that formed the basis of appellant’s robbery conviction was community property in possession of appellant’s wife. Although appellant’s wife had earned the money during their marriage, there was no doubt based on the evidence adduced at trial that the property was indeed community property.
The trial court acknowledged that there was no dispute that the property allegedly taken by appellant was community property. (RT 356-357.) Defense counsel argued that an act of taking community property from a spouse could not constitute robbery. (RT 357.)
During closing argument, the prosecutor emphasized that the status of the property was immaterial:
“It does not matter that the property may have been — may have been community property, whether the robbery occurred in the defendant’s home. That’s it. It does not matter that the property is community property. It’s taking property that’s in the possession of another.”
(RT 406.)
B. The Evidence Was Insufficient
The fundamental principle of the community property system in California is that valuable acquisitions obtained during marriage by the time, energy, skill, or talents of the spouses are owned equally by both spouses. (1 Bassett, California Community Property Law (3d ed. 1994) § 3:1, p. 140.) As stated in Family Code, section 75 1, “[t]he respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests.” In addition, spouses have the same rights of management and control of community property. (Family Code, section 1100.) Moreover, the equal ownership of community property assets and acquisitions does not depend on which spouse earned the property originally. Both husband and wife equally are partners in the marriage; both equally share marital property, regardless whether or not the actual asset was earned by one or the other. (See, for example, In re Marriage of Morrison (1978) 20 Cal.3d 437, 452.)
Under Family Code, section 721, in transactions between themselves, a husband and wife are subject to the general rules which control the actions of persons occupying confidential relations with each other.
In fight of the foregoing community property principles, therefore, a husband has the management and control of community personal property, such as cash, with like absolute power of disposition, other than testamentary, as he has of his separate estate. (Family Code, section 1100.) If the husband deprives his spouse of community property, a cause of action arises for such an invasion and violation of her rights in the property. (See Wilcox v. Wilcox (1971) 21 Cal.App.3d 457.) A civil wrong but not robbery may thus occur in such a case. (See Fam. Code, section 1101, subd. (a).) By virtue of the community property laws and principles, appellant was entitled to control, use, manage, or dispose of the $280 as he saw fit subject to a civil action by his wife for breach of her rights in the property.
In addition, based on the facts of this case, appellant could not have possessed the requisite intent to steal, since a defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. (See People v. Butler (1967) 65 Cal.2d 569, 573.) “It is an established principle of the law of theft that a bona fide belief of a right or claim to the property taken, even if mistaken, negates the element of felonious intent.” (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1017, citing People v. Butler, supra, 65 Cal.2d at p. 573.) Indeed, even an unreasonable belief that a defendant had a legal right to take another’s property will suffice so long as he can establish his claim was made in good faith. (Id.)
There is some authority that a spouse may be found guilty of vandalizing community property. (See, for example, People v. Kahanic (1987) 196 Cal.App.3d 461, 466.) In this regard, the court in Kahanic held that the statutory phrase “property not his own” did not preclude liability for damage to community property. In reaching this conclusion, the appellate court reasoned that the criminal law protects an “undivided” community interest from “unilateral nonconsensual damage or destruction by the other marital partner.” (Id.) Regardless of the merits of Kahanic decision, (see 1 Bassett, California Community Property (3d ed. 1994) § 1:23, pp. 3 1-3 2 for discussion of nature and characterization of property rights between spouses), however, the reasoning in Kahanic does not apply to robbery.
Appellant, as discussed above, had an absolute right to manage or dispose of community property funds. Thus, for example, he could not be convicted of mere theft of community property funds if he had instead taken the money from his wife and spent it on a new suit for himself or for any other personal reason that he saw fit. Insofar as theft is a lesser included offense of robbery, (People v. Morales (1975) 49 Cal.App.3d 134, 139), appellant’s conviction of a greater offense, e.g., robbery, cannot stand. A lesser included offense must necessarily be committed when the greater offense is committed. (People v. Pearson (1986) 42 Cal.3d 351, 355.) If appellant could not have committed a lesser included offense, he could not as well have committed the greater offense.
It must also be emphasized that criminal statutes are to be given a commonsense reading. Penal Code, section 459, for example, criminalizes entry into “any” residence when a felonious intent is maintained. The Supreme Court, however, has held that a burglary cannot be committed when one enters his own residence. (See People v. Gauze (1975) 15 Cal.3d 709, 714-715.) The basis for this rule is that a resident has a “possessory right of habitation” in the premises. (Id., at p. 714.)
By parity of reasoning, the same rule must apply to this case involving community property. A spouse clearly has a possessory right to community property funds. (Family Code, section 751.) Since robbery is a crime of larceny, (People v. Butler, supra, 65 Cal.2d at pp. 572-573), it makes no sense to hold, as did the trial court, that a spouse can “steal” community property funds from the other spouse. For these reasons, the evidence was insufficient to support appellant’s conviction of robbing community property funds from his wife.
II
THE PETITION FOR REVI[EW SHOULD BE GRANTED
TO RESOLVE AN UNSETTLED QUESTION OF LAW
WHETHER A SPOUSE COMMITS ROBBERY WHEN HIE
TAKES COMMUNITY PROPERTY FUNDS FROM HIS WIFE
In this case, appellant was convicted of robbery when he took money from his wife’s possession. In upholding this conviction the Court of Appeal conceded that “[n]either the trial court nor the prosecutor disputed the community property nature of the funds taken.” (Exhibit A, p. 10.) Without doubt, this Court should grant review.
At the outset, it is critical to note that neither the Court of Appeal nor the parties could locate a published California opinion on point. Thus, this Court should grant review in order to resolve this presently undecided point of law. This is especially true since the ruling of the Court of Appeal is clearly in error.
As this court has made clear, robbery is a crime of larceny. (People v. Butler (1967) 65 Cal.2d 569, 572-573.) Thus, by definition, a person does not commit robbery when he takes property to which he is legally entitled. (Id. at p. 573.)
In California, a spouse has a possessory right to community property funds. (Family Code, section 751.) Thus, since robbery is a crime of larceny, it is impossible to conclude that a spouse can “steal” community property funds. Indeed, a simple hypothetical illustrates the indisputable merit of this conclusion.
Assume that appellant’s spouse had left $280 in community funds on the kitchen table. If appellant took the money and spent it on a gourmet dinner without his wife’s prior knowledge or consent, could the People charge him with theft? If so, the majority of California spouses will be held liable for theft from time to time.
As the hypothetical illustrates, the Legislature has recognized that the parties to a marriage have an undivided interest in the funds of the community. (Family Code, section 751.) As a result, a spouse simply must bear the risk that his or her partner will be a spendthrift. Given the legislative directive that each spouse has an undivided interest in community funds, one simply cannot steal from the other.
Indeed, People v. Gauze (1975) 15 Cal.3d 709 provides a parallel example of this principle. There, this court construed Penal Code, section 459 which provides that “any” entry into a residence with felonious intent constitutes burglary. Insofar as a resident of a house has a “possessory right of habitation” in the premises, this court concluded that a person cannot burglarize his or her own home. (Id, at p. 714.)
Obviously, the identical result is appropriate here. Given a spouse’s possessory interest in community funds, he or she cannot steal those funds from the other spouse. Importantly, the cases cited by the Court of Appeal in its opinion cannot alter the logic of this conclusion.
In this regard, People v. Sobiek (1973) 30 Cal.App.3d 458 is simply inapposite. There, the court held that one can steal from a business partner. However, insofar as business partners do not possess the same type of undivided property interest which is inherent in the nature of community property, its analysis is simply inapplicable here.
As for People v. Kahanic (1987) 196 Cal.App.3d 461, it was simply wrongly decided. There, the court held that the statutory phrase “property not his own” did not preclude criminal liability for vandalizing community property (a car). In reaching this conclusion, the court reasoned that the criminal law protects an “undivided” community interest “from unilateral nonconsensual damage or destruction by the other marital partner.” (Id, at p. 466.) Clearly, this analysis is incorrect. If it is not, a Pandora’s Box will open. Indeed, a simply hypothetical proves this point.
Assume that a married couple buys a house. In the backyard, an aged and cracked statue is set in concrete. Believing that his wife will not want this trash in the yard, the husband breaks it up. On these facts, can the wife have her husband prosecuted for vandalism if she disagrees with his “unilateral nonconsensual” decision? One would hope not.
As a final point, it must be emphasized that the imposition of robbery liability is not necessary to vindicate the legitimate interests of spouses. In the usual case, (such as the case at bar), the spouse will have been the victim of an assault, a battery or false imprisonment. Thus, even though one spouse may not rob another, he or she will not escape criminal liability for the actual harm infficted on his or her spouse.
In short, the analysis of the Court of Appeal cannot withstand scrutiny. Thus, this Court should grant review in order to resolve the important legal issue presented by this case.
