CALCRIM No. 1802. Theft: As Part of Overall Plan

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1802.Theft: As Part of Overall Plan
If you conclude that the defendant committed more than one theft, you
must then decide if the defendant committed multiple petty thefts or a
single grand theft. To prove that the defendant is guilty of a single grand
theft, the People must prove that:
1. The defendant committed theft of property from the same owner
or possessor on more than one occasion;
2. The combined value of the property was over $950;
AND
3. The defendant obtained the property as part of a single, overall
plan or objective.
If you conclude that the People have failed to prove grand theft, any
multiple thefts you have found proven are petty thefts.
New January 2006; Revised February 2012, August 2015, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aggregating the value of the property
or services taken if grand theft is charged on that theory.
The total value of the property taken must exceed $950 to be grand theft. (See Pen.
Code, § 490.2.)
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.
AUTHORITY
• Aggregating Value of Property Taken According to Overall Plan or General
Intent. People v. Bailey (1961) 55 Cal.2d 514, 518-519 [11 Cal.Rptr. 543, 360
P.2d 39].
• Grand Theft of Property or Services. Pen. Code, § 487(a) [property or services
exceeding $950 in value].
RELATED ISSUES
Multiple Victims
Where multiple victims are involved, there is disagreement about applying the
Bailey doctrine and cumulating the charges even if a single plan or intent is
demonstrated. (See People v. Brooks (1985) 166 Cal.App.3d 24, 30 [210 Cal.Rptr.
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90] [auctioneer stole proceeds from property belonging to several people during a
single auction; conviction for multiple counts of theft was error]; People v.
Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33 [163 Cal.Rptr. 455]
[series of petty thefts from numerous victims occurring over 10-month period
properly consolidated into single grand theft conviction where defendant employed
same scheme to defraud victims of money]; but see People v. Garcia (1990) 224
Cal.App.3d 297, 307-309 [273 Cal.Rptr. 666] [defendant filed fraudulent bonds at
different times involving different victims; multiple convictions proper]; In re David
D. (1997) 52 Cal.App.4th 304, 309 [60 Cal.Rptr.2d 552] [stating that Garcia
“articulately criticized” Brooks and Columbia Research; declined to apply Bailey to
multiple acts of vandalism].)
Combining Grand Thefts
The Bailey doctrine can be asserted by the defendant to combine multiple grand
thefts committed as part of an overall scheme into a single offense. (See People v.
Brooks (1985) 166 Cal.App.3d 24, 31 [210 Cal.Rptr. 90] [multiple grand thefts from
single auction fund]; People v. Gardner (1979) 90 Cal.App.3d 42, 47-48 [153
Cal.Rptr. 160] [multiple grand theft of hog carcasses]; People v. Richardson (1978)
83 Cal.App.3d 853, 866 [148 Cal.Rptr. 120] [multiple attempted grand thefts],
disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8
[156 Cal.Rptr. 871, 597 P.2d 130]; see also People v. Sullivan (1978) 80 Cal.App.3d
16, 19 [145 Cal.Rptr. 313] [error to refuse defense instruction about aggregating
thefts].)
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].
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] [no error in refusing to give
unanimity instruction].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 12, 13.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][i] (Matthew Bender).
THEFT AND EXTORTION CALCRIM No. 1802
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