SERIES 1800 THEFT AND EXTORTION
F 1800.6 Theft By Larceny—Defense Theories
TABLE OF CONTENTS
F 1800.6 Inst 1 (a & b) Theft: Good Faith Belief In Consent (PC 484 & PC 487)
F 1800.6 Inst 2 Theft: Taking For Purpose Of Obtaining Refund
Return to Series 1800 Table of Contents.
F 1800.6 Theft By Larceny—Defense Theories
F 1800.6 Inst 1 (a & b) Theft: Good Faith Belief In Consent (PC 484 & PC 487)
*Add to CC 1800:
Alternative a [CC 3400 adaption]:
The prosecution must prove that the defendant had the criminal intent required for theft. The defendant contends (he/she) did not have criminal intent because (he/she) believed in good faith that (he/he) had permission to take the property; however, the defendant does not need to prove that (he/she) had this belief. If you have a reasonable doubt that the defendant had the required criminal intent, you must find (him/her) not guilty.
Alternative b:
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 1863.2 Inst 10.
CALJIC NOTE: See FORECITE F 14.02b.
F 1800.6 Inst 2 Theft: Taking For Purpose Of Obtaining Refund
*Add to CC 1800:
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
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.
Attempt To Obtain Refund—After reviewing numerous common law cases and cases from other jurisdictions based on different statutes, the California Supreme Court concluded in People v. Davis (1998) 19 C4th 301 “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 (1994) 9 C4th 1, 21 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].)
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 14.02d.
F 1800.7 Theft By Larceny—Preliminary Fact Issues [Reserved]
F 1800.8 Theft By Larceny—Unanimity/Duplicity/Multiplicity [Reserved]
F 1800.9 Theft By Larceny—Lesser Offense Issues [Reserved]
