July 1, 2015

Theft Crimes (Larceny, Larceny by trick, Embezzlement, False Pretenses)| PC 484 | PC 488

Under California Penal Code 484, every person can be found guilty of theft if he/she

  • feloniously steal, take, carry, lead, or drive away the personal property of another, OR
  • fraudulently appropriate property which has been entrusted to him or her, OR
  • knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, OR
  • causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another.

To constitute a completed theft, the property must be asported or carried away. (People v. Shannon (1998) 66 Cal.App.4th 649, 654 [78 Cal.Rptr.2d 177].) Asportation requires three things: (1) the goods are severed from the possession or custody of the owner, (2) the goods are in the complete possession of the thief or thieves, and (3) the property is moved, however slightly. (Ibid.; People v. Edwards (1925) 72 Cal.App. 102, 114–115 [236 P. 944], disapproved on other grounds in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]; People v. Collins (1959) 172 Cal.App.2d 295, 299 [342 P.2d 370] [joint possession of property by more than one thief].) Asportation is fulfilled by wrongful removal of property from the owner or possessor, against his or her will with the intent to steal it, even though the property is retained by the thief but a moment. (People v. Quiel (1945) 68 Cal.App.2d 674, 679 [157 P.2d 446].) 

Value. The property taken must have some intrinsic value, however slight. (People v. Franco (1970) 4 Cal.App.3d 535, 542 [84 Cal.Rptr. 513]; People v. Martinez (2002) 95 Cal.App.4th 581, 585 [115 Cal.Rptr.2d 574].)

Under PC 484, theft crimes are classified into four categories.

Theft by Larceny

A theft by larceny is defined by feloniously stealing, taking, carrying, leading, or driving away the personal property of another. In order to convict a defendant on this charge, the prosecutor will need to prove that 1. you took possession of another person’s property, 2. moving it however slightly, 3. with intent to steal (deprive permanently or for significant time of enjoyment of property), and 4. without owner’s consent.

Example. Larceny is what most people picture then they are told something has been stolen. It is simply taking someone else’s property. The defendant sees a bicycle outside the store, realizing that no one is watching the bicycle, he/she sits on it and rides away.  

Defenses. The property must be asported or carried away. If the property was never taken from the victim or never moved by the defendant, then the defendant cannot be found guilty of larceny. (The victim accidentally leaves an expensive watch at defendant’s apartment. The defendant does not take or move the property.) 

Theft by Embezzlement

Embezzlement is defined as fraudulently appropriating property which has been entrusted to the defendant. The prosecution will need to prove that 1. the property owner entrusted the property in you, 2. which you fraudulently converted or used for your own benefit, 3. with intent of depriving the true owner of the use and enjoyment.

Example. A cashier pockets the money without putting it in the cash register. He/she also does not enter the amount into the computer, so that the receipts match the amount in the drawer. 

Example. The church pastor asks a defendant to deposit cash into church’s bank account. The defendant takes the money and decides to purchase a new TV on the way home. 

Defenses. Permission is always a defense to embezzlement. If the previous example, the defendant calls the pastor and ask whether it would be fine to borrow the money as long as he deposits the same amount by the end of the week. The pastor, who has authority over the money, allows the defendant to borrow the money.

Theft by False Pretenses

Theft by False Pretenses is defined as knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property. The prosecutor needs to prove that the defendant 1. knowingly deceived the property owner by fraudulent representation or pretense, 2. with intent to obtain title to the property, and the property owner 3. transferred ownership in reliance on the false representation.  

Example. A city employee working an hourly wage, punches his time card in the morning. At the end of an 8 hour shift, he leaves work without punching his time card. He comes back after getting dinner to punch his card, thus getting an extra 2 hours of “overtime.” The city pays the wage according to the cards for several months until catching the employee in the act. 

Example. A defendant goes to a store to purchase a $20 item with his $20 gift card. Once the purchase is complete, the cashier gives the card back to the defendant telling him that there is a balance of $180 on the card. The defendant realizes that there has been a glitch. The defendant goes into the store next hour to purchase a $180 TV with the card, hoping that the system glitch has not been fixed.  

Defenses. The defendant did not know that the information he/she was telling the victim was false.

Theft by Trick

The defendant causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another. The prosecutor needs to prove 1. you obtained possession of someone else’s property, 2. the property owner consented to your possession because of fraud or deceit, 3. the defendant intended to steal the property (deprive permanently or for significant time of enjoyment of property), and the property owner did not intent to transfer ownership/title. 

Example. A defendant asks a person walking by if he can borrow his cellphone to call 911 to report an accident. The defendant actually wants to steal the phone and run away with it. If the defendant accomplishes his intentions, he/she will be guilty of larceny by trick.   

Grand Theft vs. Petty Theft

Penal Code 487 differentiates and defines grand theft and petty theft. The classification is determined by the present market value of the property and the nature of the property. Taking of firearms, farm animals, automobile or property taken from the person are always charged as grand theft. In all other cases, the present market value governs. Property valued under $950 is charged as petty theft, and property over $950 is grand theft. 

Proposition 47 (Penal Code Section 490.2). After the passage of Proposition 47, theft is defined in Penal Code section 487 as a misdemeanor unless the value of the property taken exceeds $950. Pen. Code, § 490.2. This represents a change from the way grand theft was defined under Penal Code section 487(b)–(d) before the enactment of Proposition 47.

Punishment

Grand theft is considered a “wobbler” in California, meaning that it can be charged as a felony or misdemeanor depending on the fact of the case. Petty theft is punished by six months in county jail and a maximum fine of $1,000. Misdemeanor grand theft is punished by up to a year in county jail and a maximum fine of $1,000. Felony grand theft is punished by 16 months, two or three years in county jail and maximum fine of $10,000. 

Theft Enhancement. If there are multiple charges of theft, whether grand or petty theft, the aggregate loss exceeds any of the statutory minimums in Penal Code section 12022.6(a), and the thefts arise from a common scheme or plan, an additional prison term may be imposed. (Pen. Code, § 12022.6(b).) If the aggregate loss exceeds statutory amounts ranging from $50,000 to $2.5 million, an additional term of one to four years may be imposed. (Pen. Code, § 12022.6(a)(1)–(4); see People v. Daniel (1983) 145 Cal.App.3d 168, 174–175 [193 Cal.Rptr. 277]

Defenses

Aside from defenses described under each particular theft crime, there are number of defenses that relate to all theft crimes. Theft crimes are specific intent crimes, meaning that the defendant has to commit the physical act with a particular mental belief.

To have the requisite intent for theft, the defendant must either intend to deprive the owner permanently or to deprive the owner of a major portion of the property’s value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115 Cal.Rptr.2d 403, 38 P.3d 1].)

Ownership. If the defendant believes that the property is his/her, then he/she cannot be convicted of theft crimes. This is true even if the belief is unreasonable and mistaken. (People v. Romo (1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440]; see also People v. Devine (1892) 95 Cal. 227, 229 [30 P. 378] [“[i]t is clear that a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another’s goods”]; In re Bayles (1920) 47 Cal.App. 517, 519–521 [190 P. 1034] [larceny conviction reversed where landlady actually believed she was entitled to take tenant’s property for cleaning fees incurred even if her belief was unreasonable]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 4–6, 10–11 [160 Cal.Rptr. 692]

Note, the the victim does NOT have to be a true owner of the property. He/she is protected under the statute even if he/she is a mere possessor. Additionally, there is no requirement that the defendant benefits from the property.

Community Property. A person may be found guilty of theft of community property, but only if he or she has the intent to deprive the other owner of the property permanently. (People v. Llamas (1997) 51 Cal.App.4th 1729, 1738–1740 [60 Cal.Rptr.2d 357].)

Multiple or Single Conviction of Theft-Overall Plan or Scheme. If multiple items are stolen from a single victim over a period of time and the takings are part of one intent, plan, or impulse, only one theft occurs and the value of the items is aggregated when determining the degree of theft. (People v. Bailey (1961) 55 Cal.2d 514, 518–519 [11 Cal.Rptr. 543, 360 P.2d 39]; accord People v. Sullivan (1978) 80 Cal.App.3d 16, 19–21 [145 Cal.Rptr. 313]; see CALCRIM No. 1802, Theft: As Part of Overall Plan.)

Alter Ego Defense. A partner can be guilty of embezzling from his own partnership. “[T]hough [the Penal Code] requir[es] that the property be ‘of another’ for larceny, [it] does not require that the property be ‘of another’ for embezzlement . . . . It is both illogical and unreasonable to hold that a partner cannot steal from his partners merely because he has an undivided interest in the partnership property. Fundamentally, stealing that portion of the partners’ shares which does not belong to the thief is no different from stealing the property of any other person.” (People v. Sobiek (1973) 30 Cal.App.3d 458, 464, 468 [106 Cal.Rptr. 519]; see Pen. Code, § 484.)

 

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