F 14.02

F 14.02 n1 Theft By Larceny: Taking For Purpose Of Obtaining Refund Is Completed Theft.

People v. Davis (98) 19 C4th 301 [79 CR2d 295] 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 (98) 66 CA4th 649 [78 CR2d 177] 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.

F 14.02 n2 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 (92) 3 C4th 926, 939 [13 CR2d 259] [per se inadmissible under EC 352 except on rebuttal]; but see People v. Edelbacher (89) 47 C3d 983, 1024 [evidence of the defendant’s indebtedness or relative poverty may be admitted without undue prejudice to persons of limited means in order “to eliminate other possible explanations for a defendant’s sudden wealth after a theft offense”]; see also People v. Cornwell (2005) 37 C4th 50, 96.)

“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.)

F 14.02 n3 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 Ask for Brief Bank # B-791 for additional briefing on this issue.]

F 14.02a

Theft by Larceny:

Requirement That Property By Taken Without Consent

(PC 484 & PC 487)

*Add to CJ 14.02:

4. The property was taken without the consent of the owner.

Points and Authorities

PC 484 states every person who “feloniously” takes the personal property of another is guilty of theft. This language refers to the common law crime known as larceny. The crime of larceny has been consolidated into the single crime of theft defined in the statute, but the elements have not changed. (People v. Ashley (54) 42 C2d 246, 258 [267 P2d 271].)

Not every taking of personal property of another is a felonious taking constituting larceny. Larceny requires a taking that is either against the owner’s will (in other words, by trespass) or accomplished by fraud (as in larceny by trick.) (See Perkins, Crim. Law (2d ed. 1969) pp. 246-47.)

The California Supreme Court has indicated that an element of larceny is that the property was taken “by means of trespass” (i.e., without the consent of the owner). (People v. Davis (98) 19 C4th 301, 305 [79 CR2d 295].) CJ 14.02 does not include this element. Thus, CJ 14.02 should be modified to include the element of trespass.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

NOTES

[See Brief Bank # B-547 for additional briefing on this issue.]

F 14.02b

Theft: Good Faith Belief In Consent

(PC 484 & PC 487)

*Add to CJ 14.02:

If one takes personal property of another with the good faith belief that [he] [she] [has permission to take the property] [__________] [insert other legal claim], [he] [she] is not guilt of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft.

Points and Authorities

[See FORECITE F 9.40c.]

F 14.02c

Theft: Requirement That Taking Be From

The Possession Of Another

(PC 484 & PC 487)

*Add the following element to CJ 14.02:

4. The property was taken from the possession of another.

Points and Authorities

California courts have unequivocally interpreted the theft statutes to require proof that the property be taken from the possession of another person to constitute larceny. (See Callan v. Sup. Ct. (62) 204 CA2d 652, 667 [22 CR 508]; see also People v. Shirley (78) 78 CA3d 424, 436 [144 CR 282]; People v. Shannon (98) 66 CA4th 649 [78 CR2d 177] [the element of asportation is not satisfied unless it is shown that the goods were severed from the possession or custody of the owner]; see also FORECITE F 9.40m [Robbery: Possession Requires Ownership, Actual Possession Or Representative Capacity].)

CJ 14.02 does not include this requirement in its listing of the elements.

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-630 a/b.]

F 14.02d

Theft: Taking For Purpose Of Obtaining Refund

*Add to CJ 14.02:

The prosecution alleges that the defendant committed theft by taking property from a store display with the intent to claim its ownership and restore it to the store only on the condition that the store pay [him] [her] a refund. To prove theft on this basis the prosecution must prove beyond a reasonable doubt the following:

1. Defendant took property from a store display;

2. Defendant intended to claim ownership of the property and to return the property only upon payment of a refund by the store.

If the prosecution has failed to prove any of the above elements, you may not convict the defendant of theft.

Points & Authorities

After reviewing numerous common law cases and cases from other jurisdictions based on different statutes, the California Supreme Court concluded in People v. Davis (98) 19 C4th 301 [79 CR2d 295] “the relevant rationales may be reduced to a single line of reasoning that rests on both a principled and practical basis.” (Davis, 19 C4th at 315.) This single line of reasoning permits a conviction based on the attempt to obtain a refund from property taken from a store display provided the defendant intended to claim the property’s ownership and to restore it only on the condition that the store pay him or her a “refund.” (Ibid.) Accordingly, since Davis has articulated a special theory applicable to a charge of theft based upon the attempt to obtain a refund, the jury should be instructed on the elements of this theory as set forth by the Davis court.

Retroactivity Note: While Davis purported to glean its theory from existing case law, much of the case law analyzed came from other jurisdictions. Moreover, the ultimate theory articulated by the Davis court requires specific intent elements not previously set forth in California cases. While the Davis court characterized these elements as indicative of the general element of an intention to permanently deprive the store of the property, the special intent is phrased in terms of requirements which must be proven by the prosecution and found by the jury. (See e.g., People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317] and CJ 9.54 [substantial risk of harm element required to meet asportation element of aggravated kidnapping is included in the elements which the jury must find].)

F 14.02e

Theft: Intent To Deprive Of Main Or Major Value

(PC 487)

*Modify CJ 14.02, 2nd paragraph and Element 2, as follows [added language is capitalized]:

Every person who steals, takes, carries, leads, or drives away the personal property of another with the specific intent to [deprive the owner permanently of [his] [her] property] [DEPRIVE THAT PERSON OF THE [MAIN] [MAJOR] VALUE OF THE PROPERTY] is guilty of the crime of theft by larceny.

2. When the person took the property [he] [she] had the specific intent to [deprive the alleged victim permanently of [his] [her] property] [DEPRIVE THAT PERSON OF THE [MAIN] [MAJOR] VALUE OF THE PROPERTY]; and

Points and Authorities

See FORECITE F 9.40p.