1803. Theft: By Employee or Agent
If you conclude that the defendant committed more than one theft, you must decide whether 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 was an (employee/agent) of <insert name of employer/principal>;
2. The defendant committed theft of property [or services] from <insert name of employer/principal>;
3. The combined value of the property [or services] that the defendant obtained during a period of 12 consecutive months was $400 or more.
If you conclude that the People have failed to prove grand theft, any multiple thefts you have found proven are petty thefts.
[An agent is a person who represents someone else in dealing with other people, corporations, or entities.]
The court has a sua sponte duty to instruct on aggregating the value of the property or services taken by an employee or agent if grand theft is charged on that theory.
Aggregating Value of Property Taken by Employee or Agent. Pen. Code, § 487(b)(3); People v. Packard (1982) 131 Cal.App.3d 622, 626-627 [182 Cal.Rptr. 576].
Agent Defined. Civ. Code, § 2295.
Employee Defined. Lab. Code, § 2750.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 11, 12.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01[a] (Matthew Bender).
Penal Code section 487(b)(3) allows the prosecutor, under specified conditions, to cumulate a series of petty thefts into a grand theft, without having to prove a single intent or scheme. (People v. Packard (1982) 131 Cal.App.3d 622, 626 [182 Cal.Rptr. 576].) Therefore, this instruction does not include a single intent or scheme as an element. (Compare People v. Daniel (1983) 145 Cal.App.3d 168, 175 [193 Cal.Rptr. 277] [theft pursuant to overall plan and single fraudulent intent], and CALCRIM No. 1802, Theft: As Part of Overall Plan.) Under the appropriate circumstances, however, a defendant may assert that grand thefts committed against his or her employer over a period greater than 12 consecutive months should be combined into a single grand theft in the absence of evidence of separate intents or plans. (See People v. Packard, supra, 131 Cal.App.3d at pp. 626-627 [thefts over three-year period].)
See the Related Issues section to CALCRIM No. 1802, Theft: As Part of Overall Plan.
(New January 2006)