California Criminal Jury Instructions (CALCRIM) (2017)

1800. Theft by Larceny

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A. THEFT
1800.Theft by Larceny (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft [by
larceny] [in violation of Penal Code section 484].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took possession of property owned by someone
else;
2. The defendant took the property without the owner’s [or
owner’s agent’s] consent;
3. When the defendant took the property (he/she) intended (to
deprive the owner of it permanently/ [or] to remove it from the
owner’s [or owner’s agent’s] possession for so extended a period
of time that the owner would be deprived of a major portion of
the value or enjoyment of the property);
AND
4. The defendant moved the property, even a small distance, and
kept it for any period of time, however brief.
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
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].) Select the appropriate language in element 3.
Related Instructions
If the defendant is also charged with grand theft, give CALCRIM No. 1801, Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
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required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
If a different theory of theft is presented, see CALCRIM No. 1804, Theft by False
Pretense, CALCRIM No. 1805, Theft by Trick, CALCRIM No. 1806, Theft by
Embezzlement. See also CALCRIM No. 1861, Jury Does Not Need to Agree on
Form of Theft. The court may also wish to instruct with the bracketed “[by
larceny]” in the first sentence to distinguish this theory of theft from the others.
For theft of real property, use CALCRIM No. 1804, Theft by False Pretense. (See
People v. Sanders (1998) 67 Cal.App.4th 1403, 1413–1417 [79 Cal.Rptr.2d 806].)
AUTHORITY
• Elements. Pen. Code, § 484; People v. Williams (1946) 73 Cal.App.2d 154,
157 [166 P.2d 63]; People v. Edwards (1925) 72 Cal.App. 102, 112–117 [236 P.
944], disapproved on other grounds in In re Estrada (1965) 63 Cal.2d 740, 748
[48 Cal.Rptr. 172, 408 P.2d 948].
• Intent to Deprive Owner of Main Value. People v. Avery (2002) 27 Cal.4th 49,
57–59 [115 Cal.Rptr.2d 403, 38 P.3d 1], disapproving, to extent it is
inconsistent, People v. Marquez (1993) 16 Cal.App.4th 115, 123 [20 Cal.Rptr.2d
365]; People v. Zangari (2001) 89 Cal.App.4th 1436, 1447 [108 Cal.Rptr.2d
250].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 14–17.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).
COMMENTARY
Asportation
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
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(1945) 68 Cal.App.2d 674, 679 [157 P.2d 446].) Paragraph 4 sets forth the
asportation element.
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].) The final bracketed
paragraph may be given on request if the property in question was of slight value.
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
Attempted Theft. Pen. Code, §§ 664, 484.
• Taking an Automobile Without Consent. Veh. Code, § 10851; People v. Pater
(1968) 267 Cal.App.2d 921, 926 [73 Cal.Rptr. 823].
• Auto Tampering. Veh. Code, § 10852; People v. Anderson (1975) 15 Cal.3d
806, 810–811 [126 Cal.Rptr. 235, 543 P.2d 603].
• Misdemeanor Joyriding. Pen. Code, § 499b [of bicycle, motorboat, or vessel].
Petty theft is a not lesser-included offense of grand theft when the charge of grand
theft is based on the type of property taken. (People v. Thomas (1974) 43
Cal.App.3d 862, 870 [118 Cal.Rptr. 226].)
RELATED ISSUES
Claim of Right
If a person actually believes that he or she has a right to the property even if that
belief is mistaken or unreasonable, such belief is a defense to theft. (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]; see CALCRIM No. 1863, Defense to Theft or Robbery: Claim of
Right.)
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].)
Fraudulent Refunds
A person who takes property while in a store and presents it for a refund is guilty
of theft. (People v. Davis (1998) 19 Cal.4th 301 [79 Cal.Rptr.2d 295, 965 P.2d
1165].) The Supreme Court held that taking with the intent to fraudulently obtain a
refund constitutes both an intent to permanently deprive the store of property and a
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trespassory taking within the meaning of larceny. (Id. at pp. 317–318; see also
People v. Shannon (1998) 66 Cal.App.4th 649 [78 Cal.Rptr.2d 177].)
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.)
A serial thief “may be convicted of multiple counts of grand theft based on
separate and distinct acts of theft, even if committed pursuant to a single
overarching scheme.” [disapproving any interpretation of People v. Bailey (1961)
55 Cal.2d 514 [11 Cal.Rptr. 543, 360 P.2d 39] inconsistent with this conclusion.]
People v. Whitmer (2014) 59 Cal.4th 733, 740–741 [174 Cal.Rptr.3d 594, 329 P.3d
154].
No Need to Use or Benefit From the Property Taken
It does not matter that the person taking the property does not intend to use the
property or benefit from it; he or she is guilty of theft if there is intent to
permanently deprive the other person of the property. (People v. Kunkin (1973) 9
Cal.3d 245, 251 [107 Cal.Rptr. 184, 507 P.2d 1392]; People v. Green (1980) 27
Cal.3d 1, 57–58 [164 Cal.Rptr. 1, 609 P.2d 468] [defendant intended to destroy the
property], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826,
834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; People v. Pierce (1952) 110
Cal.App.2d 598, 609 [243 P.2d 585] [irrelevant that defendant did not personally
benefit from embezzled funds]; see also People v. Avery (2002) 27 Cal.4th 49,
57–58 [115 Cal.Rptr.2d 403, 38 P.3d 1] [intent to deprive owner of major value or
enjoyment].)
Possession
The victim of a theft does not have to be the owner of property, only in possession
of it. (People v. Edwards (1925) 72 Cal.App. 102, 116 [236 P. 944], disapproved on
other grounds in In re Estrada (1965) 63 Cal.2d 740, 748 [48 Cal.Rptr. 172, 408
P.2d 948].) “Considered as an element of larceny, ‘ownership’ and ‘possession’ may
be regarded as synonymous terms; for one who has the right of possession as
against the thief is, so far as the latter is concerned, the owner.” (Ibid; see also
People v. Davis (1893) 97 Cal. 194, 195 [31 P. 1109] [fact that property in
possession of victim sufficient to show ownership].)
Unanimity of Theft Theory Not Required
If multiple theories of theft have been presented, the jury does not need to agree on
which form of theft was committed. All the jury must agree on is that an unlawful
taking of property occurred. (People v. Counts (1995) 31 Cal.App.4th 785, 792–793
[37 Cal.Rptr.2d 425]; People v. Failla (1966) 64 Cal.2d 560, 567–569 [51 Cal.Rptr.
103, 414 P.2d 39] [burglary case]; People v. Nor Woods (1951) 37 Cal.2d 584, 586
[233 P.2d 897] [addressing the issue for theft].) See CALCRIM No. 1861, Jury
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Does Not Need to Agree on Form of Theft.
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