California Criminal Jury Instructions (CALCRIM) (2017)

1805. Theft by Trick

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1805.Theft by Trick (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft by
trick [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 obtained property that (he/she) knew was owned
by someone else;
2. The property owner [or the owner’s agent] consented to the
defendant’s possession of the property because the defendant
used fraud or deceit;
3. When the defendant obtained 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);
4. The defendant kept the property for any length of time;
AND
5. The owner [or the owner’s agent] did not intend to transfer
ownership of the property.
[Obtaining the owner’s [or the owner’s agent’s] consent to use the
property for a specified purpose while intending to use it in a different
way constitutes fraud or deceit.]
[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
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 thief must either intend to deprive the
owner permanently or to deprive the owner of a major portion of the property’s
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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
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.
AUTHORITY
• Elements of Theft. Pen. Code, § 484.
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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, § 14.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
Attempted Theft. Pen. Code, §§ 664, 484.
RELATED ISSUES
Distinguished From Theft by False Pretense
Although fraud is used to obtain the property in both theft by trick and theft by
false pretense, in theft by false pretense, the thief obtains both possession and title
to the property. For theft by trick, the thief gains only possession of the property.
(People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271]; People v. Randono
(1973) 32 Cal.App.3d 164, 172 [108 Cal.Rptr. 326]; People v. Traster (2003) 111
Cal.App.4th 1377, 1387 [4 Cal.Rptr.3d 680].)
THEFT AND EXTORTION CALCRIM No. 1805
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