California Criminal Jury Instructions (CALCRIM) (2017)

1801. Theft: Degrees

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1801.Grand and Petty Theft (Pen. Code, §§ 486, 487–488, 490.2,
491)
If you conclude that the defendant committed a theft, you must decide
whether the crime was grand theft or petty theft.
[The defendant committed petty theft if (he/she) stole property [or
services] worth $950 or less.]
[The defendant committed grand theft if the value of the property [or
services] is more than $950.]
[Theft of property from the person is grand theft if the value of the
property is more than $950. Theft is from the person if the property
taken was in the clothing of, on the body of, or in a container held or
carried by, that person.]
[Theft of (an automobile/a firearm/a horse/ <insert other
item listed in statute>) is grand theft if the value of the property is more
than $950.]
[Theft of (fruit/nuts/ <insert other item listed in statute>)
worth more than $950 is grand theft.]
[Theft of (fish/shellfish/aquacultural products/ <insert other
item listed in statute>) worth more than $950 is grand theft if (it/they)
(is/are) taken from a (commercial fishery/research operation).]
[The value of <insert relevant item enumerated in Pen. Code,
§ 487(b)(1)(B)> may be established by evidence proving that on the day
of the theft, the same items of the same variety and weight as those
stolen had a wholesale value of more than $950.]
[The value of (property/services) is the fair (market value of the
property/market wage for the services performed).]
<Fair Market Value—Generally>
[Fair market value is the highest price the property would reasonably
have been sold for in the open market at the time of, and in the general
location of, the theft.]
<Fair Market Value—Urgent Sale>
[Fair market value is the price a reasonable buyer and seller would
agree on if the buyer wanted to buy the property and the seller wanted
to sell it, but neither was under an urgent need to buy or sell.]
The People have the burden of proving beyond a reasonable doubt that
the theft was grand theft rather than a lesser crime. If the People have
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not met this burden, you must find the defendant not guilty of grand
theft.
New January 2006; Revised February 2012, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction if grand theft has been
charged.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
If the evidence raises an issue that the value of the property may be inflated or
deflated because of some urgency on the part of either the buyer or seller, the
second bracketed paragraph on fair market value should be given.
AUTHORITY
• Determination of Grand vs. Petty Theft Pen. Code, §§ 486, 487–488, 490.2,
491.
Value/Nature of Property/Theft from the Person Pen. Code, §§ 487(b)–(d),
487a.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 4, 8.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).
RELATED ISSUES
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.
Taking From the Person
To constitute a taking from the person, the property must, in some way, be
physically attached to the person. (People v. Williams (1992) 9 Cal.App.4th 1465,
1472 [12 Cal.Rptr.2d 243].) Applying this rule, the court in Williams held that a
purse taken from the passenger seat next to the driver was not a taking from the
person. (Ibid. [see generally for court’s discussion of origins of this rule].) Williams
was distinguished by the court in People v. Huggins (1997) 51 Cal.App.4th 1654,
1656–1657 [60 Cal.Rptr.2d 177], where evidence that the defendant took a purse
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placed on the floor next to and touching the victim’s foot was held sufficient to
establish a taking from the person. The victim intentionally placed her foot next to
her purse, physically touching it and thereby maintaining dominion and control
over it.
Theft of Fish, Shellfish, or Aquacultural Products
Fish taken from public waters are not “property of another” within the meaning of
Penal Code section 484 and 487; only the Fish and Game Code applies to such
takings. (People v. Brady (1991) 234 Cal.App.3d 954, 959, 961–962 [286 Cal.Rptr.
19]; see, e.g., Fish & Game Code, § 12006.6 [unlawful taking of abalone].)
Value of Written Instrument
If the thing stolen is evidence of a debt or some other written instrument, its value
is (1) the amount due or secured that is unpaid, or that might be collected in any
contingency, (2) the value of the property, title to which is shown in the instrument,
or (3) or the sum that might be recovered in the instrument’s absence. (Pen. Code,
§ 492; see Buck v. Superior Court (1966) 245 Cal.App.2d 431, 438 [54 Cal.Rptr.
282] [trust deed securing debt]; People v. Frankfort (1952) 114 Cal.App.2d 680,
703 [251 P.2d 401] [promissory notes and contracts securing debt]; People v. Quiel
(1945) 68 Cal.App.2d 674, 678 [157 P.2d 446] [unpaid bank checks]; see also Pen.
Code, §§ 493 [value of stolen passage tickets], 494 [completed written instrument
need not be issued or delivered].) If evidence of a debt or right of action is
embezzled, its value is the sum due on or secured by the instrument. (Pen. Code,
§ 514.) Section 492 only applies if the written instrument has value and is taken
from a victim. (See People v. Sanders (1998) 67 Cal.App.4th 1403, 1414, fn. 16
[79 Cal.Rptr.2d 806].)
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