Criminal Law

1863. Defense to Theft or Robbery: Claim of Right

If the defendant obtained property under a claim of right, (he/ she) did not have the intent required for the crime of (theft/ [or] robbery).

The defendant obtained property under a claim of right if (he/ she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.

In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.

[The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.]

[The claim-of-right defense does not apply to offset or pay claims against the property owner of an undetermined or disputed amount.]

[The claim-of-right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal.]

If you have a reasonable doubt about whether the defendant had the intent required for (theft/ [or] robbery), you must find (him/ her) not guilty of <insert specific theft crime>.

Bench Notes

Instructional Duty

When a claim of right is supported by substantial evidence, the trial court must instruct sua sponte on the defense. (People v. Creath (1995) 31 Cal.App.4th 312, 319 [37 Cal.Rptr.2d 336]; see People v. Barnett (1998) 17 Cal.4th 1044, 1145 [74 Cal.Rptr.2d 121, 954 P.2d 384] [no substantial evidence supporting inference of bona fide belief].)


Instructional Requirements. Pen. Code, § 511; People v. Tufunga (1999) 21 Cal.4th 935, 952, fn. 4 [90 Cal.Rptr.2d 143, 987 P.2d 168]; People v. Romo (1990) 220 Cal.App.3d 514, 517, 518 [269 Cal.Rptr. 440].

Good Faith Belief. People v. Stewart (1976) 16 Cal.3d 133, 139-140 [127 Cal.Rptr. 117, 544 P.2d 1317]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 4, 10-11 [160 Cal.Rptr. 692].

No Concealment of Taking. People v. Wooten (1996) 44 Cal.App.4th 1834, 1848-1849 [52 Cal.Rptr.2d 765].

Not Available to Recover Unliquidated Claims. People v. Holmes (1970) 5 Cal.App.3d 21, 24-25 [84 Cal.Rptr. 889].

Not Available to Recover From Notoriously or Known Illegal Activity. People v. Gates (1987) 43 Cal.3d 1168, 1181-1182 [240 Cal.Rptr. 666, 743 P.2d 301].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 32, 34.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.10[1][b], Ch. 143, Crimes Against Property, § 143.01[1][d] (Matthew Bender).

(New January 2006)