3220. Amount of Loss
If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crimes[s] of <insert lesser offense[s]>], you must then decide whether the People have proved the additional allegation that the value of the property (taken[,]/ [or] damaged[,]/ [or] destroyed) was more than $ <insert amount alleged>.
To prove this allegation, the People must prove that:
1. In the commission [or attempted commission] of the crime, the defendant (took[,]/ [or] damaged[,]/ [or] destroyed) property;
2. When the defendant acted, (he/she) intended to (take[,]/ [or] damage[,]/ [or] destroy) the property;
3. The loss caused by the defendant's (taking[,]/ [or] damaging[,]/ [or] destroying) the property was greater than $ <insert amount alleged>.
[If you find the defendant guilty of more than one crime, you may add together the loss from each crime to determine whether the total loss from all the crimes was more than $ <insert amount alleged> if the People prove that:
A. The defendant intended to and did (take[,]/ [or] damage[,]/ [or] destroy) property in each crime;
B. Each crime arose from a common scheme or plan.]
[The value of property is the fair market value of the property.]
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.
The court has a sua sponte duty to give this instruction on the enhancement when charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
Enhancement. Pen. Code, § 12022.6.
Value Is Fair Market Value. People v. Swanson (1983) 142 Cal.App.3d 104, 107-109 [190 Cal.Rptr. 768].
Defendant Need Not Intend to Permanently Deprive Owner of Property. People v. Kellett (1982) 134 Cal.App.3d 949, 958-959 [185 Cal.Rptr. 1].
Victim Need Not Suffer Actual Loss. People v. Bates (1980) 113 Cal.App.3d 481, 483-484 [169 Cal.Rptr. 853]; People v. Ramirez (1980) 109 Cal.App.3d 529, 539-540 [167 Cal.Rptr. 174].
Defendant Need Not Know or Reasonably Believe Value of Item Exceeded Amount Specified. People v. DeLeon (1982) 138 Cal.App.3d 602, 606-607 [188 Cal.Rptr. 63].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 292.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.45 (Matthew Bender).
Penal Code section 12022.6 applies to "any person [who] takes, damages, or destroys any property. . . ." The statute does not explicitly include vicarious liability but also does not use the term "personally" to limit the scope of liability. In People v. Fulton (1984) 155 Cal.App.3d 91, 102 [201 Cal.Rptr. 879], the Fourth Appellate District of the Court of Appeal interpreted this language to mean that the statute did not require that the defendant personally take, damage, or destroy the property, but provided for vicarious liability. In reaching this conclusion, the court relied on the reasoning of People v. Le (1984) 154 Cal.App.3d 1 [200 Cal.Rptr. 839], which held that an enhancement for being armed with a firearm under Penal Code section 12022.3(b) allowed for vicarious liability despite the fact that the statute does not explicitly include vicarious liability. The Fulton court also disagreed with the holding of People v. Reed (1982) 135 Cal.App.3d 149 [185 Cal.Rptr. 169], which held that Penal Code section 12022.3(b) did not include vicarious liability. However, the Fulton decision failed to consider the Supreme Court opinion in People v. Walker (1976) 18 Cal.3d 232, 241-242 [133 Cal.Rptr. 520, 555 P.2d 306], which held that an enhancement does not provide for vicarious liability unless the underlying statute contains an explicit statement that vicarious liability is included within the statute's scope. Moreover, the Supreme Court has endorsed the Reed opinion and criticized the Le opinion, noting that Le also failed to consider the holding of Walker. (People v. Piper (1986) 42 Cal.3d 471, 477, fn. 5 [229 Cal.Rptr. 125, 772 P.2d 899].) Similarly, the Fifth Appellate District of the Court of Appeal has observed that "the weight of authority has endorsed the analysis in Reed" and rejected the holding of Le. (People v. Rener (1994) 24 Cal.App.4th 258, 267 [29 Cal.Rptr.2d 392] [holding that Pen. Code, § 12022.3(a) & (b) does not include vicarious liability].) Thus, although no case has explicitly overruled Fulton, the holding of that case appears to be contrary to the weight of authority.
As used in Penal Code section 12022.6, "take" does not have the same meaning as in the context of theft. (People v. Kellett (1982) 134 Cal.App.3d 949, 958-959 [185 Cal.Rptr. 1].) The defendant need not intend to permanently deprive the owner of the property so long as the defendant intends to take, damage, or destroy the property. (Ibid.) Moreover, the defendant need not actually steal the property but may "take" it in other ways. (People v. Superior Court (Kizer) (1984) 155 Cal.App.3d 932, 935 [204 Cal.Rptr. 179].) Thus, the enhancement may be applied to the crime of receiving stolen property (ibid.) and to the crime of driving a stolen vehicle (People v. Kellett, supra, 134 Cal.App.3d at pp. 958-959).
As used in Penal Code section 12022.6, "loss" does not require that the victim suffer an actual or permanent loss. (People v. Bates (1980) 113
Cal.App.3d 481, 483-484 [169 Cal.Rptr. 853]; People v. Ramirez (1980) 109 Cal.App.3d 529, 539-540 [167 Cal.Rptr. 174].) Thus, the enhancement may be imposed where the defendant had temporary possession of the stolen property but the property was recovered (People v. Bates, supra, 113 Cal.App.3d at pp. 483-484), and where the defendant attempted fraudulent wire transfers but the bank suffered no actual financial loss (People v. Ramirez, supra, 109 Cal.App.3d at pp. 539-540).
(New January 2006)