California Criminal Jury Instructions (CALCRIM) (2017)

1862. Return of Property Not a Defense to Theft

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1862.Return of Property Not a Defense to Theft (Pen. Code,
§§ 512, 513)
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.
New January 2006; Revised October 2010
BENCH NOTES
Instructional Duty
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].)
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 512, 513; see People v. Pond
(1955) 44 Cal.2d 665, 674–675 [284 P.2d 793].
• Intent to Return Embezzled Property At Time of Taking Not a Defense Under
Pen. Code, § 512 Unless the Property was Returned Before the Person was
Charged. People v. Sisuphan (2010) 181 Cal.App.4th 800, 812 [104
Cal.Rptr.3d 654].
Secondary Sources
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[1][e] (Matthew Bender).
RELATED ISSUES
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,
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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].)
CALCRIM No. 1862 THEFT AND EXTORTION
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