1805. Theft by Trick
The defendant is charged [in Count ______] with [grand/petty] theft by trick.
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;
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.]
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 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.
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.
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 12, 64.
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.
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].)
(New January 2006)