1801. Theft: Degrees
If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft.
[The defendant committed grand theft if (he/she) stole property [or services] worth more than $400.]
[Theft of property from the person is grand theft, no matter how much the property is worth. 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.]
[Theft of (fruit/nuts/ <insert other item listed in statute>) worth more than $100 is grand theft.]
[Theft of (fish/shellfish/aquacultural products/ <insert other item listed in statute>) worth more than $100 is grand theft if (it/they) (is/are) taken from a (commercial fishery/research operation).]
[The value of avocados or citrus fruits may be established by evidence proving that on the day of the theft, avocados or citrus fruits of the same variety and weight as those stolen had a wholesale value of more than $100.]
[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.]
All other theft is petty theft.
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 not met this burden, you must find the defendant not guilty of grand theft.
The court has a sua sponte duty to give an instruction if grand theft has been charged.
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.
Determination of Degrees. Pen. Code, §§ 486, 487-488, 491.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property § 4.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01 (Matthew Bender).
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 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
If fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation producing such products, it is grand theft if the value of the fish or other products exceeds $100. (Pen. Code, § 487(b)(2).) 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].) If the fish are taken from any other private waters or from someone else's possession, the taking falls within the general theft provisions and must exceed $400 in value to be grand theft. (See Pen. Code, § 487(a).)
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].)
(New January 2006)