SERIES 1800 THEFT AND EXTORTION
F 1800.5 Theft By Larceny—Elements And Definitions
TABLE OF CONTENTS
F 1800.5 Inst 1 Separate Enumeration Of Combined Elements; Value As Element”
F 1800.5 Inst 2 No Completed Theft When Store Personnel Consent To Taking Merchandise Outside
F 1800.5 Inst 3 Theft By Appropriation Of Lost Property (PC 485)
F 1800.5 Inst 4 Theft By Larceny: Possession Issues And Instructions
F 1800.5 Inst 5 Failure To Define “Consent”
Return to Series 1800 Table of Contents.
F 1800.5 Inst 1 Separate Enumeration Of Combined Elements; Value As Element
*Modify CC 1800, Elements 1 and 2 as follows [added language is underlined; deleted language is stricken]:
1. The defendant took possession of property;
2. The property was owned by someone else;
3. The property had some intrinsic value;
2 4. The defendant took the property without the owner’s [or owner’s agent’s] consent;
[Renumber remaining Elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Value As Element—See CALCRIM 1800, paragraph 4; see also generally FORECITE F 103.2 Inst 1.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1800.5 Inst 2 No Completed Theft When Store Personnel Consent To Taking Merchandise Outside
*Modify CC 1800, Element 2, as follows [added language is underlined]:
2. The defendant took the property against the owner’s will or without the owner’s [or owner’s agent’s] consent;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Against Owner’s Will—The crime of theft requires an unlawful taking and asportation of the property of another (PC 484; People v. Sally (1993) 12 CA4th 1621, 1627.) “The taking … must be against the will of the owner or at least without his consent.” (People v. Edwards (1925) 72 CA 102, 113; 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 (1998) 19 C4th 301 [attempt to return unpurchased merchandise for refund is theft].) [See Brief Bank # B-693 and Opinion Bank # O-207forthe briefing and opinion in People v. Finau UNPUBLISHED (11/22/95, A068092) on this issue.]
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 14.00 n10.
F 1800.5 Inst 3 Theft By Appropriation Of Lost Property (PC 485)
*Replace CC 1800 with the following when appropriate:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Criminal Intent Required—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.) “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.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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 does not know where to find the property. (People v. Stay (1971) 19 CA3d 166, 172-173.)
Conflict With CALCRIM 2080—People v. Stay (1971) 19 CA3d 166, 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 (1990) 217 CA3d 1245, 1252-53 [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 (1965) 232 CA2d 674, 678-79; People v. Newman (1975) 49 CA3d 426, 431; cf. People v. Counts (1995) 31 CA4th 785, 793.) 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).
CALJIC NOTE: See FORECITE F 14.00a.
F 1800.5 Inst 4 Theft By Larceny: Possession Issues And Instructions
See FORECITE F 3306.
F 1800.5 Inst 5 Failure To Define “Consent”
Compare CALCRIM 1000.
