1862. Return of Property Not a Defense to Theft
If you conclude that the People have proved that the defendant committed <insert charged theft crime>, the return or offer to return (some/all) of the property wrongfully obtained is not a defense to that charge.
An instruction that restoration of wrongfully obtained property is no defense to a charge of theft may be given on request. (See People v. Pond (1955) 44 Cal.2d 665, 674-675 [284 P.2d 793]; see also People v. Jenkins (1994) 29 Cal.App.4th 287, 297 [34 Cal.Rptr.2d 483] [court need not instruct on its own motion on specific points developed at trial]; People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].)
Instructional Requirements. Pen. Code, §§ 512, 513; see People v. Pond (1955) 44 Cal.2d 665, 674-675 [284 P.2d 793].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 36.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01[e] (Matthew Bender).
Exception to Show Evidence of Intent
This instruction relates to wrongfully obtained property. However, a defendant may present evidence that he or she restored or improved property to show that his or her intent at the time of the taking was not larcenous. But there must be a relevant and probative link in the defendant's subsequent actions from which an original, innocent intent might be inferred. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1100- 1101 [10 Cal.Rptr.2d 821].)
Embezzlement of Public Funds
In a case of alleged embezzlement of public funds, it is error to instruct that restoration may be used to mitigate punishment. (People v. Smith (1929) 206 Cal. 235, 237 [273 P. 789]; People v. Marquis (1957) 153 Cal.App.2d 553, 558-559 [315 P.2d 57]; see Pen. Code, § 1203(e)(7) [probation prohibited for embezzlement of public funds].)
(New January 2006)