SERIES 1800 THEFT AND EXTORTION
F 1863 NOTES
TABLE OF CONTENTS
F 1863 Note 1 Defense To Theft Or Robbery: Claim of Right—CALCRIM Cross-References And Research Notes
F 1863 Note 2 Claim Of Right: Inapplicable To Ransom Demand
F 1863 Note 3 Claim Of Right: Improper To Define As A Defense
F 1863 Note 4 Robbery: Claim Of Right Limitations (PC 211)
F 1863 Note 5 Kidnap For Ransom: Claim Of Right Inapplicable (PC 209)
F 1863 Note 6 Kidnapping To Commit Robbery: Claim Of Right Defense (PC 209)
F 1863 Note 7 Kidnapping to Commit Robbery: Claim of Right Defense (PC 209)
F 1863 Note 8 Claim Of Right: Overlap With Mistake Of Fact
F 1863 Note 9 Claim of Right Based On Accomplice’s Ownership Of Property May Negate Intent to Steal
F 1863 Note 10 Strategy Note: Claim Of Right
Return to Series 1800 Table of Contents.
F 1863 Note 1 Defense To Theft Or Robbery: Claim of Right—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1600 [Robbery] et seq.
CALCRIM 1800 [Theft] et seq.
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
Annotation, Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 ALR3d 1309 and Later Case Service.
F 1863 Note 2 Claim Of Right: Inapplicable To Ransom Demand
(See In re Albert A. (1996) 47 CA4th 1004. See also FORECITE F 9.40 n9.)
CALJIC NOTE: See FORECITE F 4.001 n1.
F 1863 Note 3 Claim Of Right: Improper To Define As A Defense
Briefing on this issue is available to FORECITE subscribers. Brief Bank # B-862.]
CALJIC NOTE: See FORECITE F 4.001 n2.
F 1863 Note 4 Robbery: Claim Of Right Limitations (PC 211)
See FORECITE F 1600 Note 10.
F 1863 Note 5 Kidnap For Ransom: Claim Of Right Inapplicable (PC 209)
In People v. Serrano (1992) 11 CA4th 1672, 1677-78, the court held that the claim of right defense, which applies to a charge of theft, does not apply to the crime of kidnap for ransom.
CALJIC NOTE: See FORECITE F 9.53 n1.
F 1863 Note 6 Kidnapping To Commit Robbery: Claim Of Right Defense (PC 209)
See FORECITE F 9.40a; FORECITE F 9.40b; FORECITE F 9.40 n9; and FORECITE F 9.53 n1; see also People v. Duran (2001) 88 CA4th 1371, 1374 [carjacking is necessarily included offense of kidnapping].
CALJIC NOTE: See FORECITE F 9.54 n1.
F 1863 Note 7 Kidnapping to Commit Robbery: Claim of Right Defense (PC 209)
The claim of right defense does not apply to extortion or kidnapping for ransom. (People v. Serrano (1992) 11 CA4th 1672.)
CALJIC NOTE: See FORECITE F 9.54 n3.
F 1863 Note 8 Claim Of Right: Overlap With Mistake Of Fact
See People v. Russell (2006) 144 CA4th 1415, 1428-29 [“the defense can overlap”].
F 1863 Note 9 Claim Of Right Based On Accomplice’s Ownership Of Property May Negate Intent To Steal
A good-faith belief by a defendant, tried as an accomplice, that he was assisting his co-principal to retake the principal’s property, negates the felonious intent element of a theft-based offense, and a claim-of-right instruction must be given where substantial evidence supports such a belief. To be liable as a principal on an aiding and abetting theory, the accused must share the specific intent with the perpetrator. If substantial evidence is presented that the principal did not have the mental state for the crime of theft because he believed he was retaking his property, the same applies to the aider and abettor. Accordingly, the trial court erred in denying appellant’s request for instruction (i.e., CC 1863) on claim-of-right. (See People v. Williams (8/26/2009, C059218) 176 CA4th 1521.)
F 1863 Note 10 Strategy Note: Claim Of Right
The CALCRIM instruction on claim of right includes several limitations which could torpedo a defense claim of right theory. These limitations include:
1) A specific property of specific monetary amount be identified.
(2) Claim of right “does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.”
(3) Claim of right does not apply “if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal.”
In light of these limitations counsel may not want to request CC 1863 and instead rely on the elemental definition of larceny which will inform the jury, inter alia, that the defendant took property that was not (his/her) own with the intent to deprive the owner of it permanently. The prosecution should be required to prove these definitional elements of robbery regardless of whether or not a claim of right instruction is warranted. (See generally Fiore v. White (2001) 531 US 225; In re Winship (1970) 397 US 358, 364; People v. Mower (2002) 28 C4th 457, 480; People v. Flood (98) 18 C4th 470.) “[T]he state may not label as an affirmative defense a traditional element of an offense and thereby make a defendant presumptively guilty of that offense unless the defendant disproves the existence of that element.” (People v. Neidinger (2006) 40 C4th 67, 74.)
By equating concealment with intent to steal CC 1863 turns a defense theory instruction into a windfall for the prosecution by removing the element of intent to steal from the jurors’ consideration. For example, in cases where CC 1863 is given the defendant may be convicted of theft or robbery even if he did not intend to steal provided the jury finds that the taking was concealed. On the other hand, if CC is not given that same defendant could not be convicted under the definitional elements of theft or robbery.