Theft, Receiving
Category > Theft, Receiving
Updated 7/26/2023The trial court prejudicially erred by modifying the theft instruction to include cases dealing with the consumption of utilities during a residential burglary.Defendant was convicted of residential burglary and attempted residential burglary. He entered a house believing the Archangel Michael had given it to him. While inside the house, he consumed food and used utilities. The trial court erred when it modified the theft instruction to cite cases dealing with the consumption of utilities. By modifying the instruction without reference to the mental state required for theft, the court lightened the prosecution’s burden. The error was prejudicial under the Chapman standard, which applies to the misinstruction on an element of the offense.id: 27704
The trial court erred in instructing the jury that it could convict defendant of felony elder theft based on identity theft without regard to the value of property taken. Defendant was convicted of theft from an elder under Penal Code section 268 (d). The conviction requires theft in excess of $950, and the trial court erred by instructing that defendant could be convicted based on an identity theft theory regardless of the value of the property taken.id: 27062
Evidence did not support the identity theft conviction because there was no evidence that defendant used the victims’ identifying information for an unlawful purpose without their consent. Evidence did not support the defendant’s multiple identify theft convictions under Penal Code section 530.5, subd.(a). There was no evidence that he used the victims’ information for an unlawful purpose where he deposited their checks or accepted their wire transfers. Moreover, he did not use their information without consent. The victims sent him checks or wired money intending that he would get the money. While he did not use the money as promised (and committed theft) he did not use the victim’s identifying information without consent.id: 25242
The country club from which defendant stole a TV and golf balls was a “commercial establishment” for purposes of the new misdemeanor shoplifting provision.The trial court erred in denying defendant’s Prop 47 request to reduce his burglary to misdemeanor shoplifting under Penal Code section 459.5. Contrary to the court’s finding, the private country club from which defendant stole a flat screen TV and golf balls was a commercial establishment for purposes of the new provision.id: 24895
A defendant may not be convicted of grand theft by larceny and embezzlement based on the same course of conduct.Larceny under Penal Code section 484, subd.(a) and embezzlement under section 503 are not different offenses, but rather are different statements of the same offense. Section 954 prohibits multiple convictions for different statements of the same offense. id: 24866
Vehicle Code section 10851 conviction was reversed where it was unclear whether defendant was properly convicted of an unlawful driving or improperly convicted of an unlawful taking of the vehicle.A defendant can’t be convicted of a felony for unlawfully taking a vehicle with the intent to permanently deprive the owner of possession unless it was worth more than $950, though he can be convicted of unlawful driving a vehicle even if worth less than the threshold amount. The trial court erred by failing to instruct the jury it had to find the car was worth more than $950 to convict him of permanently taking the vehicle. Also there was a reasonable doubt whether the jury properly convicted defendant of improper driving or improperly convicted him of an unlawful taking. Defendant was entitled to have his conviction reduced to a misdemeanor or to be retried for a felony conviction under the proper theory.id: 26491
Defendant was improperly convicted of both grand theft of credit cards and receiving the same credit cards as stolen property.Defendant was improperly convicted of grand theft of the credit cards under Penal Code section 484e, subd.(d), and receiving those same credit cards as stolen property in violation of section 496. The conviction for receiving stolen property was reversed. However, defendant’s other conviction for possessing confidential bank documents under section 530.5, subd.(c)(3) was outside the statutory scheme governing the theft offenses and so it remained valid.id: 25198
Entering a bank intending to cash a stolen check for less than $950 constitutes shoplifting under Prop 47.Defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as theft by false pretenses rather than larceny, now constitutes shoplifting under Penal Code section 459.5. Defendant may properly petition for misdemeanor resentencing under section 1170.18.id: 25171
Prop 47 applies to section 10851 cases that are based on theft of a vehicle worth $950 or less but not based on driving. Prop 47 applies to Vehicle Code section 10851 theft convictions when the value of the vehicle is $950 or less, but not convictions based on driving, no matter the value.id: 25173
Theft of access card account information is a crime eligible for reduced punishment under Prop 47.Theft of access card account information - debit and credit card information - is a crime that is eligible for reduced punishment under Prop 47. Penal Code section 490.2's value threshold of $950 must be applied using a reasonable and fair market value test.id: 25175
Defendant was improperly convicted of simple larceny of uncaptured flowing water. Defendant grew marijuana for medical use. He was convicted of petty theft of water for diverting water from a stream onto his field. He argued the state did not own the water, and it had been discarded by the Union Pacific Railroad. Water is not personalty unless captured, and because the railroad had not captured any of the water that defendant diverted from the flowing stream, he could not be convicted of larceny.id: 24910
Shoplifting, for purposes of Prop 47, requires proof that defendant intended to commit larceny at the time he or she enters the commercial establishment. The new shoplifting offense described in Penal Code section 459.5, as part of Prop 47, requires proof that the defendant entered the building with the intent to commit theft.id: 24806
The grand thefts were part of a single scheme and the evidence did not support two convictions.Defendant was convicted of two counts of grand theft but the court didn’t submit to the jury the question of whether they were separate and distinct under the Bailey doctrine. The evidence was insufficient to support both convictions because they were part of an overarching scheme.id: 24391
Trial court erred by failing to explain the standard to apply in determining the reasonableness of defendant’s mistake of fact claim on the charge of receiving stolen property.Defendant was convicted of receiving stolen property. He argued a mistake of fact, but the instruction given to the jurors failed to explain the standard they were to apply in determining the reasonableness of his belief. While objective reasonableness is not a requirement of the defense of mistake, subjective reasonableness is relevant. However, the instructional error was harmless where the jury was instructed to find beyond a reasonable doubt that defendant knew the equipment was stolen, and the evidence that he knew the goods were stolen was strong. id: 23819
Defendant’s elder fraud/theft conviction was reversed where he sold an older woman an annuity policy she did not understand but where there was no evidence that he intended to hurt her or benefit himself.Defendant, an insurance broker, was convicted of theft from an elder and dependent adult by selling her an annuity policy the prosecutor argued was an unsuitable product for her age despite its approval for sale to such a person by the California Department of Insurance. While there was evidence that the woman may not have understood the transaction, there was no evidence defendant appropriated the funds for his own use or that he made any misrepresentations initially. Moreover, the trial court erred by failing to instruct the jurors on the need to find defendant intended to deprive the elder of a major part of the value or enjoyment of her property. Defendant’s conviction for violating Penal Code section 368, subd.(d) was reversed.id: 23357
The trial court erred by instructing that theft by false pretense was a lesser included offense of robbery.Theft by false pretense was not a lesser included offense of robbery under the elements or accusatory pleading test as applied to the felony information. The trial court therefore erred by instructing on theft by false pretense and allowing the jury to return a verdict on that offense. The error was prejudicial because it allowed the jury to convict defendant of an offense of which he had no reasonable notice. id: 23105
The recent amendment to the definition of grand theft was applied retroactively, reducing defendant’s conviction to petty theft.Defendant took $700 from a woman and was convicted of grand theft. The jury was instructed that a defendant is guilty of the offense if he stole property worth more than $400. After he filed the notice of appeal, the legislature amended section 487, subd.(a) defining grand theft as the taking of more than $950. Defendant was entitled to the benefit of the amendment because his conviction was not yet final. The conviction was reduced to petty theft.id: 22664
Amended version of section 666, requiring three priors for felony theft offense, applies retroactively to all cases not final when the amendment went into effect. Defendant was convicted of petty theft by a repeat offender under Penal Code section 666. The provision was amended in 2010 to require at least three prior convictions unlike the old version which required only one. The provision applies retroactively to a case like the present one which was not yet final when the amendment went into effect. id: 22119
The grand theft conviction was reversed where defendant took the money from the ATM machine after the machine had rejected the bill.Evidence was insufficient to support the defendant’s conviction of grand theft from the person (Penal Code section 487, subd.(c)) where the record showed the victim had already put his money into the ATM machine before defendant arrived, and it was therefore no longer on his person when defendant took it. The conviction was reduced to petty theft.id: 22567
The trial court erroneously instructed on larceny rather than theft by false pretenses which required reversal of the theft conviction. Defendant was convicted of grand theft where he was found to have staged an accident at a ski resort to obtain medical treatment for a previous injury. The prosecution should have proceeded on a theory of theft by false pretenses because defendant gained the victim's property (the money to pay for medical expenses) with its consent. The jury was not instructed under this theory but was instructed instead on larceny where property was taken without the victim’s consent. Reversal was required because the jury had no occasion to determine if the elements of the appropriate offense - theft by false pretenses - were satisfied.id: 21654
Where a defendant is convicted of petty theft and receiving stolen property, the latter should be reversed.Defendant was convicted of both petty theft and receiving the property he stole. The Court of Appeal reversed the petty theft conviction reasoning that it was the “lesser” offense. However, in these cases, it is the receiving charge that should be dismissed because once a defendant has been convicted of theft, there is no basis for a receiving conviction.id: 21565
CALCRIM No. 1804 failed to inform jurors that theft by false pretenses requires proof that the writing accompanying the false promise must also be false. CALCRIM No. 1804, regarding theft by false pretenses, fails to inform the jury the writing accompanying the false promise must also be false. While the instruction is erroneous and must be amended, the error was harmless where the evidence showed defendant made false promises in writing to get the victims to part with the money.id: 20900
Defendant may not be convicted of carjacking and receipt of stolen property. Under Penal Code section 496, subd.(a), a defendant may not be convicted of both carjacking and receiving the car stolen in the carjacking. id: 20893
Modification to auto theft provision reducing the maximum term should be applied retroactively.At the time of the offense and sentencing for appellant's auto theft conviction under Vehicle Code section 10851, subdivision (a) that section provided for terms of punishment of two, three or four years. The provision had a sunset clause which stated that on January 1, 1993, the penalties for violating this provision returned to the earlier penalties of 16 months, two years, or three years. The lesser punishment can and should be applied to all cases pending before the court.id: 10448
Joyriding is a necessarily included offense of unlawful driving under section 10851, subdivision (a) if pled as driving and taking and supported by facts.Joyriding under Penal Code section 499, subdivision (b) is a necessarily included offense of auto theft under Vehicle Code section 10851, subdivision (a) if the latter is charged in the conjunctive as driving and taking. Since the instant complaint was so worded and the evidence supported the charge under that theory the court erred in failing to instruct on the lesser offense of joyriding. Defendant did not waive the issue in concurring with the withdrawal of the lesser included offense instruction where he represented himself and there was no tactical reason for failing to challenge the withdrawal of the instruction. Moreover, the error was prejudicial where there was at least an equal chance the jury could have found defendant guilty of joyriding.id: 10445
Instructions differentiating auto theft from joyriding were misleading and should have been clarified such that taking under joyriding statute included driving as well as taking.Defendant was convicted of driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). The trial court instructed with CALJIC 14.36 (Vehicle Code section 10851) and CALJIC 16.305 (Penal Code section 499b - joyriding). CALJIC 16.305 provides that every person who <U>takes</U> an auto without the owner's permission is guilty of violating section 499b. The trial court erred in denying defendant's request to modify the instruction to replace takes with takes or drives. Where the evidence permitted the jury to find that defendant drove the car but did not take it, the instruction on section 499b was misleading. The word take within section 499b must be construed to include the act of driving as well as taking. Moreover, the court also erred in instructing that section 499b requires a specific intent as all that is required is a general intent to perform the act.id: 10443
Evidence of defendant's mental disorders and intoxication was admissible to refute an essential element of the crime - that he knew the property was stolen.The trial court precluded evidence of defendant's voluntary intoxication and mental disorders because the charged crime of receiving stolen property is a general intent crime. However, with regard to the element of knowledge, receiving stolen property is a specific intent crime, as that term is used in Penal Code section 22, subdivision (b), and section 28, subdivision (a). The preclusion of evidence of mental disorders and their exacerbation by drug abuse, unfairly denied him the opportunity to prove he lacked the requisite knowledge. The error required reversal of the conviction.id: 10433
Evidence did not support theft of trade secrets conviction as conclusory allegations did not establish the allegedly appropriated items gave defendant an advantage over competitors.Defendant was convicted of theft of trade secrets as a misdemeanor under Penal Code section 499, subdivision (b)(2). However, the element of the offense that the prosecution establish the item appropriated give one who uses it an advantage over competitors who do not know of or use the trade secret requires more than mere conclusory and generalized allegations. An executive of the company alleging theft asserted that the information in appellant's computer at work would be of great interest to a competitor and stated his desire not to have any competitors know defendant's work schedule which was in his computer at home. However, such statements do not reveal, except by an insufficient and generalized assumption, that any competitive advantage would flow from the revelation of the information.id: 10431
Evidence did not support a conviction under section 666 where defendant did not serve time for her prior petit theft conviction.Defendant was convicted of petty theft with a prior petit theft under Penal Code section 666. Section 666 requires that defendant serve time in a penal institution for the prior petit theft. Defendant was convicted of the earlier crime and granted probation on the condition that she serve 30 days in county jail. However, the sheriff permitted defendant to perform 20 days on a work project pursuant to section 4024.2 in lieu of jail time. Therefore, defendant did not serve a term in a penal institution as required under section 666 and the conviction was reduced to petit theft.id: 10430
Embezzlement instructions were improper where the parties had a debtor-creditor relationship and did not have the required trust and confidence relationship.Defendant real estate developer was convicted of grand theft based upon misrepresentations made to a construction lender. The trial court erred in instructing on embezzlement pursuant to CALJIC 14.07 because the parties did not have the required relationship of trust and confidence. There was no evidence the relationship was anything other than debtor-creditor. The error was harmless given the evidence on separate theories of theft including false pretenses or embezzlement under section 484c.id: 10425
Defendant's ATM theft conviction was reversed where the evidence did not show the bank gave written notice of the revocation of his ATM card.Defendant was convicted of fraudulent use of an access card or ATM theft within the meaning of Penal Code section 484g. However, because there was no evidence that the bank gave written notice to defendant that the ATM card had been suspended or terminated, the conviction was reversed.id: 10423
Defendant was convicted of the wrong theory of grand theft but the error was harmless where the evidence showed theft by trick rather than theft by false pretenses.Defendant was an administrator who was supposed to purchase certain software for his company, but spent the money on himself. He was convicted of grand theft on the theory of theft by false pretenses. However, because he never obtained title to the money he spent, the crime was really larceny by trick. The error in charging the wrong theory was harmless where the evidence demonstrated theft by trick. As to a second count involving a separate company, defendant's conviction was reduced to an attempt to commit larceny by trick since the firm canceled the transaction after discovering the deceit, and defendant never obtained possession or control of the firm's money.id: 17566
Counsel rendered IAC by failing to appeal the denial of a motion to dismiss where the evidence did not show the minor was in the stolen vehicle, and the minor did not waive the right to challenge the denial of the motion by later testifying.Following the denial of the motion to dismiss for insufficient evidence, the juvenile court sustained the petition alleging receiving stolen property. However, the minor was denied the effective assistance of counsel by counsel's failure to file an appeal from the judgment. The IAC was prejudicial as there was insufficient evidence to sustain the petition where the only evidence presented showed that four youths exited and fled from a stolen car. The minor was not identified. Moreover, the minor did not waive the right to challenge the denial of the motion to dismiss by thereafter testifying in his own defense. Even considering the minor's testimony there was insufficient evidence to sustain the petition where the minor said he was a back seat passenger and hardly knew the driver.id: 17818
Trial court erred in applying CALJIC 2.15 to nontheft offenses.The trial court instructed pursuant to CALJIC 2.15 regarding the effect of possession of recently stolen property. The trial court's application of CALJIC 2.15 to nontheft offenses like rape or murder was erroneous. However, the error was harmless where it was unlikely the jurors would have reached a different result if the court had limited the permissive inference described in the instruction to theft offenses.id: 17290
Carjacker may not be convicted of both robbery and grand theft of the victim's automobile.Evidence established that defendant approached the victim sitting in his vehicle. Defendant placed a gun at his head and ordered the victim out of the car. Defendant took the victim's wallet and keys and then drove off in the victim's car. His conviction of both robbery and grand theft of the automobile stolen during the robbery was improper. The car was part of the loot stolen in the robbery. Moreover, the pleadings alleged the auto theft as a lesser, necessarily included offense within the charged robbery because the offenses involved the same victim on the same date.id: 10089
The court improperly instructed the jury they could convict defendant of murder upon his possession of property recently stolen property from the victim and other slight corroborating evidence.CALJIC 2.15 states that a defendant may be found guilty of a theft-related offense if the defendant is in possession of recently stolen property and there is other slight corroborating evidence of guilt. The trial court erred in modifying the instruction to include murder as a crime to which it would apply. Proof that a defendant was in possession of recently stolen property does not lead naturally to the conclusion that the defendant committed a murder to obtain the property. However, the instructional error was harmless in light of the other properly given instructions and the defendant's multiple admissions of guilt for the murder.id: 16463
Error in excluding evidence of improvements to theft victim's property and return of some money was harmless where the actions did little to support the defense of a nonlarcenous intent.Defendant was convicted of grand theft and argued the court erred in excluding evidence of restoration or restitution by defendant to the victim. The court technically erred in relying on Penal Code sections 512 and 513 to exclude the evidence of improvements to the property and to allow evidence for impeachment purposes only of defendant's return of some of the money. The evidence was not offered by defendant to show restoration, the purpose for which the evidence was inadmissible under the relied-upon statute. However, the error was harmless because the actions did little, if anything, to support the defense that defendant had a nonlarcenous intent.id: 10428
Court erred in failing to instruct on theft as a lesser included offense of robbery where there was evidence that the intent to steal arose after the killing.Evidence supported a finding that the intent to steal the rings from the victim was formed before the killing which would constitute robbery. Evidence, including defendant's statements to the police, also supported the theory that the intent to steal was formed after the killing which would only establish theft. The court erred in not instructing sua sponte on theft as a lesser included offense of robbery. The error was prejudicial where it could not be said that the jury necessarily considered the question of after-formed intent and rejected the mere theft theory on the merits.id: 10419
Error in accepting a stipulation as to defendant's ex-felon status without full Boykin-Tahl advisements and waivers was not prejudicialDefendant was charge with possession of a firearm by an ex-felon. Prior to his stipulation to the ex-felon status the court advised him of his right to a jury trial on that element. However, the court erred in neglecting to also advise defendant and obtain personal waivers of the right to confrontation and the privilege against self-incrimination. The error was not reversible as the stipulation was a routine tactical choice and it was not reasonably probable a result more favorable to defendant would have been reached if proper advisements were given.id: 10427
Grand theft is a lesser included offense of grand theft by an employee.Grand theft under Penal Code section 487, subd. (a) is a lesser included offense of grand theft by an employee under section 487, subd.(b)(3). Therefore, where the evidence did not show defendant’s thefts from his employer were committed pursuant to separate intents or schemes, defendant could only be convicted of one count.id: 20774
Defendant could not be separately punished for forgery and theft where forgery was the means used to commit the theft.Defendant could not be separately punished for forgery in counts 9 and 17 because the forgeries were part and parcel of the theft, securities fraud and burglary. She had a single criminal intent – to take the victim’s money. The separate sentences violated Penal Code section 654 and were ordered stayed.id: 20717
Grand theft convictions were reduced to misdemeanors where the jury never determined the amount of the property exceeded $400.Defendant’s convictions for grand theft in four counts were reduced to misdemeanors where the jury never found the value of the stolen property exceeded $400. id: 20620
Defendant could not be convicted of credit card fraud to purchase a computer and receiving stolen property.Defendant was convicted of credit card fraud as she used the victim’s credit card to purchase the computer, and receiving stolen property – the same computer. The convictions for both counts violated the prohibition against the dual convictions for theft and receipt of the same property.id: 20619
The prosecution must prove items were received on different occasions to justify multiple convictions of receiving stolen property under the theory that the items were improperly withheld or concealed.Defendant was convicted of several counts of receiving stolen property on the theory that she withheld or concealed checks and credit cards from their rightful owner. However, multiple convictions were not proper under this theory absent evidence as to when the items were received on different occasions. One conviction was reversed for lack of evidence as to when the items were received.id: 20520
A defendant may be convicted of only one violation of section 484e, subd.(b) within any 12 month period when he or she acquires multiple access cards.Penal Code section 484e, subd.(b) defines an offense of grand theft where a person "within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained" with the intent to defraud. The provision precludes multiple convictions where the prosecution alleges that the defendant acquired access cards within any consecutive 12 month period.id: 19022
At defendant's trial for receiving a stolen vehicle, the trial court erred in failing to instruct on claim-of-right and mistake-of-fact defenses where defendant acted as if he
believed the vehicle was abandoned.Defendant was convicted of receiving a stolen motor vehicle under Penal Code section 496d. In light of the evidence that defendant acted as though the motorcycle had been abandoned and he was entitled to possess it and made no attempt to conceal the fact that he was taking it, the trial court erred in failing to instruct sua sponte on the mistake-of-fact and claim-of-right defenses. The error was prejudicial since a finding that either defense applied would have negated the intent element of the offense.id: 19347
The conviction for receiving stolen property was reversed after defendant was convicted of stealing and receiving the same property.The trial court erred in failing to instruct the jury that it could not convict defendant of both theft and receiving the property that was stolen. The trial court later erred in attempting to correct the problem by striking the petty theft conviction. The conviction for receiving stolen property should be reversed.id: 19915
The trial court prejudicially erred in failing to define "stolen" and "theft" in relation to receiving stolen property where there was evidence the property was taken
without the necessary intent.Defendant assisted his girlfriend in taking her mother's
jewelry to a pawn shop. He was convicted of receiving stolen property. The offense requires the property be stolen or obtained by theft - i.e., taken with the intent to deprive the owner of possession for an extended time. The evidence here suggested the property had been taken without the requisite intent since pawning is not selling and a transfer of temporary possession of the property with a security interest in it. Thus, the trial court had a duty to instruct sua sponte
with the definition of "stolen" and "theft" including the intent requirement.id: 19233
Receiving stolen property is included within the offense of owning and operating a chop shop where the charges stem from the same stolen property.The offense of receiving stolen property under Penal Code section 496 is necessarily included within the offense of owning and operating a chop shop under Vehicle Code section 10801 so as to bar simultaneous convictions on both offenses where the charges are based on the same stolen property.id: 15487
Provision requiring 90-day sentence for theft exceeding $50,000 does not apply to theft of trade secrets.Penal Code section 1203.044, which mandates at least a 90-day sentence in county jail as a condition of probation for a defendant convicted of a felony for theft of an amount exceeding $50,000, in a single transaction does not apply to the theft of trade secrets.id: 15486
Adverse possessor who rented the property could not be convicted of grand theft as to the rent received.Defendant took over residential property he believed had been "abandoned" by the owner and then rented the property on his own behalf. An adverse processor has a right to rent the property. Defendant could not be convicted of grant theft as to the rent received because he was entitled to keep that rent, subject only to the obligation created under Civil Code section 890, that the rent be applied to the mortgage encumbrance.id: 15481
Evidence was insufficient to show that stolen "master key" for a content scrambler used to protect against DVD piracy was a trade secret under section 499c.Defendant was an engineer for a company (Odeum) that purchased a license to use a "master key" associated with a content scrambling system to protect DVD content. The master key licensing agreement required the company maintain the confidentiality of the master key. Defendant later copied the master key when he left the company. The evidence did not support his conviction of grand theft of a trade secret in violation of Penal Code section 499c. The prosecution failed to produce substantial evidence that anyone other than Odeum could have obtained economic value from the disclosure or use of the master key, and therefore, the evidence was insufficient to prove the "independent economic value" factor of the offense of grand theft of a trade secret.
id: 17745
Theft against an elder conviction was reversed where the instruction given on undue influence permitted persuasion short of coercion. Defendant was convicted of theft against an elder pursuant to Penal Code section 368, subd.(d) and grand theft under section 487, subd.(a). The trial court erred by instructing that the victim's apparent consent to the transactions was ineffective if obtained by the exercise of undue influence since the definition of undue influence given, was little more than over-persuasion. The convictions were reversed where the instructions provided alternate theories for guilt, some of which were legally correct, but it could not be determined which theory the jurors adopted.id: 19311
It is not a crime for a spouse to take a community property vehicle with the intent to temporarily deprive the other spouse of title to or possession of the vehicle.A spouse may be criminally liable for theft of community property when he or she intends to permanently deprive the other of possession. However, when a spouse takes a community property vehicle with the intent to temporarily deprive the other of its use, no violation of Vehicle Code section 10851 occurs since the spouse has not taken a vehicle not his or her own. The evidence was insufficient to support the conviction of section 10851. The error was prejudicial where nothing in the record suggested the jury relied on the theory that defendant intended to permanently deprive his wife of the car.id: 10444
Grand theft auto is a lesser included offense of robbery when the car is stolen as part of the property taken at a robbery and no other intent is shown.Defendant was convicted of several offenses including grand theft auto and robbery. However, the convictions were improper because when, as here, an automobile is stolen as part of the property taken in a robbery, and no other intent is shown the defendant may not be convicted of both robbery and grand theft of the same property.id: 10110
Welfare fraud conviction cannot be used as a prior theft-related conviction for a Penal Code section 666 charge of petty theft with a prior.The references in Penal Code section 666 to "petty theft" and "grand theft" - as qualifying prior convictions for a charge of petty theft with a prior - do not include a welfare fraud conviction under Welfare and Institutions Code section 11483.id: 19906
Instruction that intent to commit theft is presumed from failure to return rental car violated due process.Pursuant to California Vehicle Code section 10855 and Penal Code section 484(b), the jury was instructed that intent to commit fraud is presumed if one who has leased or rented the personal property of another pursuant to a written contract fails to return the personal property to its owner within 20 days after the owner has made written demand. The Supreme Court unanimously held that this mandatory presumption violated due process by relieving the government of the burden of proving every element of the offense beyond a reasonable doubt. The case was remanded for a determination as to whether the error was harmless. Justices Scalia, Brennan, Marshall and Blackmun concurred, but argued that a higher than usual standard of harmlessness should be applied on remand because of the mandatory nature of the presumption here.id: 10442
Where defendant was charged with petty theft with a prior, the court erred in taking judicial notice of the alleged prior.When an alleged prior conviction has been denied and not bifurcated, the trial judge may not take judicial notice of its records (Evidence Code section 452, subdivision (d) as conclusive proof of that alleged prior conviction. The issue must be determined by the jury.id: 10470
Purse taken from the car seat next to the victim did not establish grand theft person.Defendant argued the evidence was insufficient to support a conviction of grand theft person because the victim's purse was not taken from her person but rather from the car seat beside her. The conviction was reversed as property taken from the actual and immediate control of the victim is not taken from the person of the victim within the meaning of Penal Code section 487, subd. 2, unless the property is physically attached to the victim in some manner.id: 10453
Theft conviction under larceny by trick theory was reversed where the evidence instead established theft by false pretenses.The jury was instructed on only one theory of theft - theft by trick and device. However, there was no evidence the bank teller intended to surrender to defendant only possession and not title to the money. The event described was an ordinary check-cashing transaction, in which the bank accepted the check payable to its depositor's account in exchange for $810 in cash. These facts support a conviction of theft by false pretenses but not larceny by trick and device. The evidence was therefore insufficient to support the theft conviction on the only theory presented to the jury, larceny by trick and the conviction was reversed.id: 10465
Receiving stolen property allegation was set aside because appellant was apprehended in possession of property he stole.The minor's receiving stolen property finding was set aside because he was the person who actually stole the audio tapes, his apprehension occurred before the statute of limitations had run on the theft, and a thief cannot be convicted of receiving the property which he stole.id: 10454
Convictions for receiving stolen property were improper where the property was that stolen in the burglaries of which defendant had been convicted.Because defendant's two convictions for receipt of stolen property involved the very property which was stolen in the burglaries of which he was convicted, the receiving convictions were reversed.id: 10416
Joyriding is a specific intent crime.Joyriding under Penal Code section 499b is a crime which requires specific, rather than a general, criminal intent.id: 10446
When a defendant stipulates to a prior theft conviction in a charge of petty theft with a prior theft, the prior may not be mentioned at trial.It has long been the law in California that, when a defendant stipulates to a prior theft conviction in a charge of petty theft with a prior theft conviction [Penal Code section 666], the prior may not be mentioned at trial. The People argued that Article I, section 28(f) of the California Constitution [a component of Proposition 8] changed the law by requiring that prior felony convictions be proven in open court. However, section 28(f) is not applicable in a prosecution under section 666 since only a prior theft-related conviction and not necessarily a prior felony conviction is element of section 666.id: 10468
Evidence of misappropriation was insufficient to convict defendant of receiving stolen property.Defendant was convicted of receiving stolen property, a heifer, in violation of Penal Code section 496. The prosecution charged and tried the case on a theory of a larcenous taking. However, the record contained no evidence of theft by larceny. The People argued that the heifer became stolen once defendants misappropriated it under section 485. Defendants cannot be convicted on a theory neither advanced at trial nor factually determined by the jury. Moreover, the acts of alleged misappropriation under section 485 formed one uninterrupted course of conduct with the acts alleged as concealment under section 496. As such, defendants cannot be convicted of concealing or withholding property misappropriated by the same acts.id: 10434
Defendant cannot be convicted of stealing and receiving the same property.Defendant was improperly convicted of both stealing and receiving the same property. The appropriate remedy was to reverse the conviction for receiving stolen property, and let stand the conviction for robbery which was supported by substantial evidence.id: 10420
A defendant cannot be convicted of stealing a vehicle and receiving the same vehicle as stolen property.A defendant cannot be convicted of both stealing a vehicle and receiving the same vehicle as stolen property and the trial court has a sua sponte obligation to so instruct. In the instant case, the record did not reflect whether the jury found the defendant had stolen the truck or had merely unlawfully driven it. However, the court reversed the conviction of the lesser offense<197>receiving stolen property<197>and let the conviction of the greater offense stand.id: 10407
The illegal taking and killing of abalone from coastal waters may not be punished as grand theft.The illegal taking and killing of abalone from coastal waters may not be punished as grand theft under Penal Code section 487, subd.(1) because the abalone cannot be construed as the personal property of another i.e., the state, within the meaning of the statute. However, such conduct is punishable under several provisions of the Fish and Game Code.id: 10464
Grand theft of an automobile count was a necessarily included offense of the robbery and should have been dismissed.Defendant correctly argued the trial court should have dismissed the grand theft of an automobile count because it was a lesser and necessarily included offense of the robbery. Although he took more than one item of personal property from the victim, the few seconds which elapsed between each taking coupled with the circumstance that her car traveled some small distance across the parking lot were wholly insufficient to sustain a finding that defendant could be convicted of both robbery and grand theft. The robbery was a continuous transaction, and the theft of the automobile was necessarily included within that robbery.id: 10440
Informing the jury of appellant's prior auto theft conviction required reversal where appellant had stipulated to the prior.Appellant was convicted of illegal taking or driving of a vehicle with a prior conviction for the same offense (Penal Code section 666.5). Section 666.5 provides for enhancement of the sentence rather than defining a new offense. Consequently, the prior Vehicle Code section 10851 conviction was not an element of any offense charged here, and Article 1, section 28, subd. (f) did not require that it be proven to the trier of fact. Penal Code section 1025 provides that when such a prior conviction allegation is admitted before trial the jury is not to be informed of the charge or admission. The error was prejudicial since the People's case on the substantive charge was less than overwhelming on the single controverted issue, intent to deprive the owner of possession.id: 10441
Lesser included offense of joyriding instruction should have been given regarding the taking of the vehicle where evidence supported a finding of intent to use temporarily.Defendant was convicted of unlawfully driving or taking a vehicle pursuant to Vehicle Code section 10851, subdivision (a). The court erred in failing to instruct on the lesser included offense of joyriding (Penal Code section 499b). Defendant was found in the driver's seat of a parked vehicle the day after it was taken and some distance away. The evidence could have supported a finding that he had the intent or purpose of temporarily using or operating the vehicle.id: 10447
Court erred in failing to instruct on theft as a lesser included offense of robbery where defendant testified he decided to steal from the victim after the victim was dead.Defendant's testimony that he killed in response to the victim's homosexual advances and only thereafter decided to take property, was substantial evidence that defendant did not steal by means of force or fear. The court therefore erred in failing to provide instructions and verdict forms which would permit convictions and findings based on theft rather than robbery. However, the error was harmless because the jurors had been emphatically told not to convict defendant of first degree felony murder or find the robbery-murder special circumstance time if they reasonably believed that he killed for reasons unrelated to theft and stole only as an incidental afterthought.id: 10418
Updated 9/12/2023Online retail price was circumstantial evidence of the value of the stolen item for purposes of grand theft.Defendant was convicted of grand theft and argued the evidence was insufficient to show the value of the stolen dumbbells exceeded $950, the felony threshold. The only evidence presented was the testimony of the manager of the warehouse facility where the theft occurred who testified as to the prices listed in three retailers’ websites for the same product. This was circumstantial evidence of the fair market value of the item. The defense was free to submit evidence of lower prices from other retailers. The online prices were admissible to establish the value of the stolen goods.id: 27869
Updated 8/8/2023In an identity theft case, the prosecution is not required to prove defendant knew the information he used belonged to a real person. Defendant argued there was insufficient evidence to support his conviction for identity theft under Penal Code section 530.5. Contrary to defendant’s claim, the prosecution was required to prove the defendant knew the personal identifying information he used belonged to a real person. id: 27749
The prosecution can charge theft instead of shoplifting the same property if it can show defendant would be guilty of the former but not the latter. As a general rule, Penal Code section 459.5 (b) prohibits a prosecutor from charging theft when there is probable cause that the defendant has committed shoplifting of the same property. As an exception, even when there is probable cause of shoplifting, the prosecution can charge theft instead, if it can articulate a theory supported by evidence under which the defendant would be guilty of theft but not shoplifting. id: 26794
A prosecutor may charge shoplifting with an allegation that the property is worth less than $950 such that petty theft is an uncharged lesser included offense.Penal Code section 459.5 (b) precludes charging shoplifting and theft of the same property, even in the alternative. But a prosecutor may charge shoplifting with an allegation that the value of the property does not exceed $950 such that petty theft is an uncharged lesser included offense under the accusatory pleading test. If shoplifting is so charged, and there is substantial evidence from which a jury could conclude the defendant committed petty theft but not shoplifting, the trial court is required to instruct on petty theft, and the jury must return an acquittal on shoplifting before it may return a verdict on petty theft.id: 26793
Device used to move storage bins was a “vehicle” for purposes of section 10851(a). Defendant was convicted of unlawfully taking or driving a vehicle under Vehicle Code section 10851(a). He argued the motorized equipment involved in the case was not a vehicle for purposes of section 10851 because it was designed to move storage bins, traveled at low speeds and was not normally used for driving on the highway. However, the device had the potential to haul storage containers on a highway, rendering it a vehicle for the present purpose notwithstanding that it was designed for slow speed use off of a public highway.id: 26502
Defendant’s boarding and driving a motorized device used to move storage bins violated both theories described in Vehicle Code section 10851.After a night of drinking, defendant entered a storage yard and climbed onto a piece of equipment used to move storage bins. He began driving the machine but did not leave the storage yard. Evidence supported both theories of liability under Vehicle Code section 10851 - that is an improper driving as well as an improper taking of the “vehicle.” id: 26503
The trial court did not err by refusing to instruct on the claim-of-right defense for the defendant charged with attempted grand theft and conspiracy to commit that offense.Defendant was convicted of the unauthorized practice of law, and a conspiracy to commit grand theft as he represented himself as a lawyer when filing a demand letter to a lumber company on behalf of codefendant Cornett, claiming Cornett had been injured on the premises. Contrary to defendant’s claim, he was not entitled to a claim-of-right instruction in this circumstance, and the instruction was inconsistent with his trial defense that he had done nothing wrong.id: 25051
Evidence supported conviction for grand theft by larceny in the real estate transaction even though it may also have supported theft by false pretenses involving the second victim. Defendant sold an office building to Reinecke, taking back a secured promissory note. He then sold the note to Emmet and personally guaranteed it. Reinecke was to make payments to Emmet but fell behind and renegotiated with Kaufman, not knowing that Emmet owned the note. Reinecke then paid defendant in full under the new deal. Defendant told Emmet that Reinecke would no longer pay and defendant defaulted on his payments to Emmet. Defendant was convicted of grand theft by larceny against Emmet, but argued on appeal that the evidence only supported the uncharged crime of theft by false pretenses as to Reinecke. However, evidence supported the conviction even though it may also have supported the uncharged theory. Moreover, Emmet’s threat to seek criminal prosecution if not paid did not amount to a defense of extortion and there was no error in denying the instruction on that basis.id: 25435
Defendant could be convicted of both unlawful taking or driving a vehicle under Vehicle Code section 10851, and receiving the stolen property inside the car.Defendant argued he was erroneously convicted of both stealing a car and receiving stolen property (credit cards) inside the car. The single larceny doctrine holds that when a defendant steals multiple items during the course of a single act, or indivisible transaction involving a single victim, he commits only one theft. However, the auto theft under Vehicle Code section 10851 can be prosecuted for unlawfully taking or driving the car. Here, it was considered a non-theft driving offense and the conviction did not preclude a separate conviction for receiving the stolen credit cards inside the car.id: 25262
Evidence was insufficient to support the petty theft by false pretenses conviction where the passenger refused to pay a cab driver who missed a turn while defendant was talking on his phone. Defendant arranged for a taxi ride home from a bar, then refused to pay the fare after arguing with the driver over whether he had taken the long route to run up the fare while defendant was talking on his cell phone. The evidence was insufficient to support his conviction for theft by false pretenses. There was no evidence of an intent to defraud and defendant’s failure to pay the driver was more of a transaction gone bad or a broken promise following the disagreement.id: 24766
A caregiver with a power of attorney committed grand theft by larceny by taking money from the elderly woman’s bank accounts upon her death because the woman’s estate owned the property upon death and the power of attorney no longer controlled. Defendant was a caregiver for an elderly woman, who removed $300,000 from the bank accounts when the woman died. Defendant argued the evidence did not support her grand theft by larceny conviction because she held the power of attorney over the accounts and she took the money with the consent of the owner’s agent - herself. However, once the woman died she no longer owned the accounts - her estate did. Defendant’s power of attorney gave her no right to access the funds. The trial court had no duty to instruct on the Probate Code sections regarding the power of attorney. In any event, the evidence supported a conviction of theft by embezzlement. id: 21786
Concealment is relevant to a claim-of-right defense regarding of the type of theft involved.Defendant, a caregiver was convicted of grand theft larceny for draining her client’s bank accounts upon her death. She argued the trial court erred when giving a claim-of-right instruction by stating the defense does not apply if the defendant attempted to conceal the taking. However, concealment (or the lack of concealment) is relevant when a claim-of-right defense is raised in connection with any type of theft.id: 21801
The petty theft conviction was reversed where defendant was improperly convicted of both petty theft and receiving stolen property. Defendant was improperly convicted of both petty theft and receiving stolen property where the convictions arose from the theft and receipt of the same property. The theft count, which was the lesser offense, was reversed.id: 21451
Grand theft auto does not encompass the theft of motorcycles but defendant was properly convicted under the alternative theory of theft of property worth more than $400.Defendant was unlawfully convicted of multiple counts of grand theft automobile because that crime (Penal Code section 487, subd.(d)(1)) does not encompass the theft of motorcycles and dirt bikes. However, the error was harmless as the jury was also properly instructed it could convict defendant of grand theft if he stole property worth more than $400, and the jury necessarily found him guilty under a correct legal theory. id: 23054
Defendant was properly convicted of multiple counts of grand theft stemming from a single scheme where each theft exceeded the $400 limit.Defendant was convicted of 20 counts of grand theft based upon the theft of motorcycles and dirt bikes with the 20 transactions occurring on 13 different dates. Contrary to defendant’s claim, he was properly convicted of multiple counts based on separate and distinct acts of theft committed pursuant to a single scheme. The court found the holding was required by People v. Bailey (1961) 55 Cal.2nd 514, but urged the Supreme Court to clarify the holding in Bailey. id: 23055
Defendant who stole a meal from a restaurant could be prosecuted for either petty theft or defrauding an innkeeper.Defendant was convicted of petty theft with a prior conviction for stealing a meal from a steakhouse. He argued that he should have been prosecuted under the more specific provision of defrauding an innkeeper (or restaurant) described in Penal Code section 537, subd. (a). However the offenses did not conflict, and defendant could have been prosecuted under either provision. id: 23684
Evidence was sufficient to show defendant had the intent to deprive the credit union of the vehicle even though he was acquitted of theft by false pretenses.Defendant was convicted of grant theft arising from an improper lien sale. He argued there was insufficient evidence that he had the specific intent to deprive the credit union of the Land Cruiser and the acquittal of the theft by false pretenses charge proved that. However, inconsistent verdicts don’t establish insufficient evidence, and a reasonable jury would have inferred defendant was part of that scheme even if he was not the instigator.id: 23864
Burglary conviction was supported by evidence where defendant entered the electronics store intending to steal as he placed expensive computer in a less expensive printer box.Defendant was convicted of burglary after he was found by an electronics store security guard to have placed an expensive laptop computer in a less expensive printer box. He argued the evidence didn’t support a burglary conviction based on intent to commit larceny, the theory on which the jury was instructed, and that if anything, the crime was theft by false pretenses. However, the evidence supported the conviction where the jury found he entered the store with the intent to commit theft.id: 23421
Contractor was properly convicted of grand theft for accepting payment for repairs he misrepresented were completed.Evidence supported the grand theft conviction against a contractor who misrepresented that certain repairs had been finished when they were not and accepted payment based on his misrepresentation. id: 23299
In an identity theft case, the prosecution need not prove a victim suffered any loss or damage. Defendants operated a nonprofit group home. They cashed four checks written to employees and independent workers without their permission. The trial court erred by dismissing the identity theft counts because there is no requirement that the prosecution prove as an element of the offense that a victim suffered any loss or damage. id: 22909
Defendant was properly convicted of three counts of identity theft where he possessed information relating to three people. Defendant was properly charged with and convicted of three counts of identity theft under Penal Code section 530.5, subd.(c)(1) based upon his possession of personal identifying information relating to three victims.id: 22693
The minor committed identity theft when he hacked into the victim’s facebook account and posted vulgar messages allegedly written by the victim.The juvenile court properly found the minor committed identity theft under Penal Code section 530.5, subd.(a) when he accessed the victim’s facebook account, altered her profile and posted obscene comments purportedly as the victim. He “willfully” obtained the victim’s password when he chose to remember it from a text message he received and later used the password to gain access to the victim’s electronic accounts. Moreover, he used the information “for an unlawful purpose” under the statute when he committed the civil tort of libel. Criminal conduct was not necessary to establish an “unlawful purpose.” id: 22313
Renter who failed to pay rent was properly convicted of grand theft as she intended to permanently deprive the lessor of a leasehold interest.Defendant used another person’s name and personal identifying information to convince a lessor of an apartment that she was creditworthy. She leased the apartment but was evicted for nonpayment of rent. She argued the evidence failed to support her grand theft conviction because it did not establish an intent to permanently deprive the lessor of its property. However, defendant intended to permanently deprive the lessor of a leasehold interest, at least to the extent that defendant failed to pay rent during her occupancy.id: 22306
Defendant was properly convicted of grand theft by an employee and embezzlement.Defendant argued he could not be convicted of both embezzlement in violation of Penal Code section 508 and grand theft by an employee under section 487(b)(3) because they have been combined into the single statutory definition of theft under section 484. However, defendant was properly convicted of both offenses as the jury had to find different intents and elements. Moreover, grand theft larceny by an employee is not a necessarily included offense of embezzlement by an employee.id: 21976
Intent to return or the return of property is not a defense to embezzlement.Defendant was convicted of embezzlement under Penal Code section 508. Contrary to defendant’s claim, the trial court did not err by failing to instruct the jury that Penal Code section 512 provided a defense to embezzlement if the evidence showed defendant took the money intending to return it. Moreover, the trial court did not err by excluding evidence that defendant had returned the money to the victim because the return of property is not a defense to embezzlement.id: 21380
The statute of limitations for the embezzlement offenses began to run when the defendant’s supervisors learned of his conduct.Defendant argued the embezzlement counts were time-barred because he was indicted more than four years after the offenses should have been discovered. However, the statute of limitations period did not begin to run until defendant’s supervisors learned of his conduct. The fact that his subordinates knew what he was doing was not significant.id: 21706
Defendant could be convicted of embezzlement even if he intended to return the company’s car and money.Defendant worked for a car dealer and drove a trade-in vehicle nearly 400 miles in search of drugs he purchased with part of the downpayment on a new car the customer had given him. He was convicted of embezzlement under Penal Code section 508. The trial court did not err in excluding evidence that defendant lacked the intent to permanently deprive the owner of property because the embezzlement would have been committed even if the defendant intended to return both the vehicle and the money.id: 21577
Appropriation of lost property is not a specific intent offense.Defendant was convicted of appropriation of lost property under Penal Code section 485. That crime is a general intent offense and the trial court did not err in failing to instruct on the need for specific intent. Moreover, the court did not prejudicially err in failing to give a mistake of fact instruction because defendant's mistaken belief that the misappropriated circuit boards belonged to the insurance company would not have established that he lacked the requisite mental state.id: 21508
The fictitious check defendant snatched from the sales clerk’s hand had intrinsic value for purposes of grand theft from the person.Defendant argued his conviction of grand theft from the person (Penal Code section 487, subd.(c)) was not supported by substantial evidence because the “bogus check” he took from the sales clerk’s hand had no intrinsic value. The offense requires that the object taken has some intrinsic value and a jury could reasonably infer the phony check had such value by virtue of the paper it was printed on. It also had value as a negotiable instrument that, if legally drawn, would entitle its holder to payment on demand.id: 20453
Code section 530.5, identity theft, is violated each time an identity is used even though it was improperly acquired only once.Defendant was convicted of two counts of identity theft under Penal Code section 530.5, subd..(a). The counts involved the use of the victim’s driver’s license to assist with purchases in difference stores on separate days. Contrary to defendant’s claim, both convictions were proper as the provision is violated each time the offender uses personal identifying information for an unlawful purpose.id: 20519
The trial court had no sua sponte duty to instruct that possession of recently stolen property was sufficient by itself to establish guilt for the theft-related offenses.Defendant was convicted of vehicle theft and possession of burglary tools. The trial court did not err in failing to instruct sua sponte with CALJIC No. 215 that possession of recently stolen property was insufficient by itself to establish guilt of the charged offenses. id: 20364
Evidence supported theft of elder by caretaker conviction where the victim was not capable of consenting to the transfer of funds.Defendant was convicted of theft by a caretaker from an elder under Penal Code section 368, subd.(e). She argued the 68 year-old victim suffering from cognitive impairment due to Parkinson's disease, consented to her taking of more than $17,000 to buy herself a new vehicle. However, substantial evidence showed the victim was not capable of consenting to the transfer of money.id: 19488
CALCRIM instruction on possession of stolen property does not permit jurors to ignore explanations for the possession. CALCRIM 376 regarding the possession of recently stolen property does not improperly inform jurors that possession of stolen property may tend to prove robbery rather than theft. Moreover, it does not allow jurors to ignore any explanation for the possession.id: 19724
When someone, intending to steal, causes property to become separated from the victim's person, then gains possession of the property, the crime is theft from the person. Theft from the person of another is grand theft. Defendant and his cohort, attempting to steal property, assaulted someone causing them to drop a cell phone while fleeing. Defendant
picked the telephone off the ground and kept it. Defendant committed grand theft because the telephone was on the victim's person when the assault began, and the victim did not lay it down, but dropped it while fleeing.id: 19482
The trial court had no sua sponte duty to instruct with CALJIC 2.15 regarding the possession of stolen property.The trial court did not err in failing to instruct sua sponte, with CALJIC 2.15, which states that possession of recently stolen property is alone insufficient to support a conviction of a theft-related offense. The court held (contrary to other cases) that CALJIC 2.15 is not the type of instruction that must be given sua sponte in every theft-related case, and all interests are best served by leaving the giving of the instruction to the trial court and parties as the needs of individual cases dictate.id: 18883
Evidence of possession of greater wealth than usual was relevant circumstantial evidence in a theft-related case.Defendant argued the trial court erred in allowing evidence of his poverty to establish a motive to commit robbery. However, sudden possession of greater wealth than ususal is relevant circumstantial evidence in a theft-related case, and does not present a risk of unfair prejudice to persons of limited means.id: 18731
A defendant may be convicted of Vehicle Code section 10851(a) and Penal Code section 496(a) where it is possible defendant committed the theft and nontheft forms of section 10851 by taking the car and later engaging in post theft driving.When the evidence is such that it is not reasonably probable that a properly instructed jury would have found that the defendant took the vehicle but did not engage in any post-theft driving, a reviewing court may construe a Vehicle Code section 10851, subd.(a) conviction as a conviction for post-theft driving, and on that basis may uphold the conviction under Penal Code section 496, subd.(a) for receiving the same vehicle as stolen property.id: 18550
Defense counsel was not ineffective for failing to object to an amendment in the information.Defendant argued trial counsel rendered ineffective assistance by failing to object to the prosecutor's motion to amend the information to include a charge of petty theft with a prior under Penal Code section 666, without first proving the prior offense at the preliminary hearing. However, section 666 does not establish a separate substantive offense, but rather is a discretionary sentencing statute which allows the trial court to punish petty theft as a felony or misdemeanor. Moreover, the complaint charging robbery put defendant on notice that he could be convicted of the lesser included offense of petty theft, and it enumerated two petty theft priors for other purposes. Finally, defense counsel may have had a reasonable tactical reason not to object - as the only benefit he could gain would be delay through a dismissal and the refiling of charges.
id: 18100
While a charge of receiving stolen property under section 496(a) was time barred, the offense of concealing stolen property under the same provision is a continuing offense and evidence supported the conviction under that theory.Defendant was convicted of receiving and concealing stolen property under 496, subd.(a). The offense of receiving stolen property was time-barred because there was no evidence he received the computer equipment within three years of the date he was charged with receiving it. However, the offense of concealing stolen property, under the same provision, is a continuing offense. The evidence supported the crime of concealing stolen property where he lied about purchasing the property in 1995 and knew it was stolen.id: 17634
Defendant may be convicted of operating a chop shop and receiving stolen property even where the same stolen property is involved if the possession is not the same.Defendant argued that receiving stolen property is a lesser included offense of operating a chop shop under Vehicle Code section 10801. This is true if the conviction for possessing stolen property is predicated upon the chop shop's possession of the same property. Here, however, defendant possessed stolen vehicle parts from the victim's Honda which he later installed in his own Honda, separately from the chop shop's possession of the same items.id: 17622
Imposition of felony sentence for petty theft with a prior did not violate due process where section 666 was not charged since robbery was charged and defendant was on notice as to all facts necessary to impose the sentence.Defendant argued a felony sentence under Penal Code section 666 violated due process because, although the accusatory pleading charged him with robbery and alleged prior qualifying convictions, it did not specifically charge him with the separate crime of petty theft with a prior conviction. However, defendant was not misled since every fact necessary to impose the felony sentence under section 666 was alleged in the amended information.id: 17589
Provision requiring mandatory jail term as a condition of probation for conviction of certain theft offenses, includes theft of trade secrets.Penal Code section 1203.044, which requires the imposition of a minimum county jail sentence as a condition of certain theft offenses, applies to the theft of property, other than money, including trade secrets.id: 16874
Knowingly accessing data from a computer system is not a strict liability offense.Defendant was convicted of a relatively new computer crime, knowingly accessing and taking data from a computer system under Penal Code section 502, subd.(c)(2). Defendant argued the offense should not be punished as a felony because it lacks a mens rea requirement. However, section 502, subd.(c)(2) is not a strict liability offense and evidence of accidental copying would negate the mental element of the offense.id: 16836
Intent to permanently deprive the owner is satisfied by intent to temporarily deprive where the property loses most of its value during that period.Under California law, theft requires an intent to permanently deprive another of property. The requirement is satisfied by the intent to take the property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment.id: 16628
A defendant may be convicted of receiving the property he or she stole.One who is a principal in the theft of property may be convicted either for the theft of the property or, under Penal Code section 496, for the receipt of the property. The requirement of a complete divorcement between the theft and possession of stolen property before the thief may be convicted of receiving stolen property was abrogated by the 1992 amendment of section 496.id: 15480
Claim of title defense does not protect a partner who steals from a partnership to satisfy alleged debts.Defendant was convicted of embezzlement. The trial court did not violate defendant's due process rights by excluding documents in support of defendant's claim of title defense. Defendant had argued the money he had taken was part of his share of the profits under an oral partnership agreement. However, the profits of a partnership can only be determined after an accounting is done. The claim of title defense does not protect partners who steal from the partnership to satisfy alleged debts. The instant facts fall outside the claim of title defense.id: 15482
Defendant completed theft by larceny when he placed the clothes in his bag intending to deprive the store of their value.Defendant entered a department store, took clothes from a rack, hid them in a bag, and took them to a cashier. He asked the cashier for a cash refund. Store personnel had seen him hide the clothes yet the cashier completed the exchange as part of the store's plan to catch defendant. Store security agents arrested defendant after he left the store with the money. Defendant completed the theft by larceny when he dropped the clothes in the bag intending to defraud the store of their value.id: 15483
Defendant was not improperly convicted of stealing and receiving the same property where he was convicted of the non-theft unlawful driving under section 10851, subd. (a).Defendant argued that he was improperly convicted of stealing and receiving the same property. However, it was undisputed that he was caught driving a car that had been reported stolen several months before. The jury necessarily found that he drove the car in an act distinct from the taking. Thus the jury found he violated the non-theft provision of Vehicle Code section 10851, subd. (a). Therefore, the dual convictions under section 10851, subd. (a) and Penal Code section 496, subd. (a) are permissible.id: 15484
Defendant, who was observed trying to return unpurchased store merchandise for credit was properly convicted of theft by trespassory larceny after he left the sales counter with a credit voucher.Defendant entered a retail store, picked up an item from the sale rack and brought it to the sales counter, claiming that he owned the item and wanted to return it for cash or credit. Without defendant's knowledge, his conduct was observed by a store security agent who instructed the cashier to issue a credit for the item. The agent thereafter detained defendant as he left the counter with the voucher. Under these circumstances defendant was properly convicted of theft by trespassory larceny.id: 15485
The actual thief may be convicted of violating section 496 whether or not the statute of limitations on the theft has run.Defendant argued the 1992 amendment to Penal Code section 496 allows the actual thief to be convicted of receiving the stolen property only if the statute of limitations has run on the theft, but if the statute has not run, the common law rule continues to prohibit a conviction of receiving. However, the actual thief may be convicted of violating section 496 whether or not the statute of limitations on the theft has run.id: 15488
The crime of theft of real property requires a taking by false pretense or representation.Defendant was charged with grand theft of real property in violation of Penal Code section 487, subdivision (l) on the theory that he had recorded false deeds and therefore stolen the property. However, the legislative history of section 484, subdivision (a) confirms that only those takings of real property effected by false pretense or representation can be theft. While the evidence supported the prosecution's claim there was no false pretense or representation. Therefore, the evidence did not support the only crime charged and reversal of the convictions was required.id: 15489
The trial court did not err in instructing that joyriding is a specific intent crime.Defendant was convicted of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851. He argued the court erred in instructing the jury that the lesser offense of joyriding was a specific intent crime. However, the court's instructions on joyriding under Penal code section 499b properly required the finding of a specific intent to temporarily take and use or operate for the purpose of temporarily using or operating the vehicle.id: 15490
A defendant may be convicted of both burglary and receiving property taken during the burglary.Defendant was convicted of receiving stolen property based on his possession of property taken during the burglary of which he was also convicted. Both convictions were proper.id: 15462
A defendant may lawfully be convicted of both burglary and receiving property he stole during the burglary.A defendant may lawfully be convicted of burglary and of receiving property that he stole during the burglary. Since he could lawfully be convicted of both crimes, the court did not err in refusing defendant's requested jury instruction, which would have told the jury that burglary and receiving stolen property were alternative charges.id: 15463
Defendant may be convicted of both burglary and receiving stolen property taken during the burglary.Defendant argued the statutory and common law prohibitions against dual convictions of receiving stolen property and theft also bars dual convictions of receiving stolen property and burglary, at least where the burglary in question was an entry with intent to commit theft. However, the rule against dual convictions of receiving stolen property and theft does not bar dual convictions of receiving stolen property and burglary.id: 15470
Municipal Court lacked jurisdiction to return an allegedly stolen vehicle prior to the trial for possession of stolen property.The Municipal Court lacked subject matter jurisdiction under Vehicle Code section 10751 to dispose of an allegedly stolen vehicle during the pendency of defendant's criminal trial for possession of stolen property. Accordingly, the Municipal Court order had no collateral estoppel effect and the superior court erred in dismissing the information on that basis.id: 10449
Petty theft is a lesser included offense of grand theft and the felony sentence under section 666 was proper where defendant was charged with the priors.Defendant was charged with grand theft but convicted of petty theft <197> ordinarily a misdemeanor. However, he received a felony sentence pursuant to Penal Code section 666 because he had prior convictions for theft-related offenses for which he had served prison terms. He argued he could not be convicted of petty theft with a prior because it was not a lesser and necessarily included offense of grand theft. However, the prior theft-related conviction and incarceration requirement of section 666 is not an element of an offense, but rather an enhancement statute. Petty theft is a lesser and necessarily included offense of grand theft. Defendant was on notice he could be convicted of petty theft and the information alleged all the elements necessary for the imposition of punishment pursuant to section 666. He could not have been misled by the absence of a specific reference to section 666.id: 10450
Possession of recently stolen items raised an inference of knowledge and instruction did not assume the recent status of the stolen property.CALJIC 2.15 advises the jury as to the evidentiary effect of proof of a defendant's possession of recently stolen property. The instruction does not erroneously assume the existence of a supporting fact (i.e., that the property was recently stolen) thereby depriving the jury of the opportunity to determine this fact. Moreover, evidence warranted the giving of the instruction where defendant could hardly have failed to know the briefcase was in his car yet was unable to explain the circumstance, and where defendant was unresponsive and uncooperative when apprehended by the police.id: 10451
Prosecutor may introduce proof of more than one prior when defendant is charged with petty theft with a prior felony conviction.Defendant was charged with petty theft with a prior felony conviction under Penal Code section 666. He argued that the prosecution should not have been allowed to introduce proof of more than one such prior conviction. However, the prosecution was entitled to introduce evidence as to both priors. Moreover, had the court forbidden the prosecutor to prove both, it would have exercised executive power which the constitution forbids.id: 10452
Recidivist auto theft statute does not only apply to cases where defendant intended to permanently deprive the owner of possession of the vehicle.Penal Code section 666.5 is a repeat offender provision mandating an increased penalty for a person previously convicted of felony vehicle theft under section 10851 of the Vehicle Code who is subsequently convicted of that offense. Section 666.5 applies to all previous and current felony convictions of section 10851, not solely those convictions based on a finding that the defendant intended to permanently deprive the owner of possession of the vehicle.id: 10455
Reduction of maximum punishment for auto theft need not be applied retroactively.Effective January 1, 1993, the maximum punishment for the unlawful taking of a vehicle pursuant to Vehicle Code section 10851 was reduced from four years to three years. The addition of the sunset clause to the statute with the declared purpose of its amendment constitutes a savings clause and should not be applied retroactively.id: 10456
Reduction of the prescribed prison terms for vehicle theft should not be applied retroactively.Reduction of the prescribed prison terms in Vehicle Code section 10851, effective January 1, 1993 should not be applied retroactively. Therefore, defendants who committed the vehicle theft in 1991 and were sentenced in December 1991 and January 1992, were not entitled to the benefit of the more lenient term.id: 10457
Reduction of the prison term for commission of auto theft should not be applied retroactively.Termination of the experimental three-year period does not entitle defendants who committed vehicle theft between January 1, 1990 and December 31, 1992, whose cases are not yet final, to a sentence more lenient than that imposed on defendants who committed the same crime between those dates but whose cases became final before January 1, 1993.id: 10458
Safeway relied upon defendant's misrepresentations in claiming his ATM card was valid for purposes of his conviction of grand theft by false pretenses.Defendant was able to obtain large amounts of cash from Safeway stores because the computer verification system was not working properly. He was convicted of grand theft by false pretenses. He argued that the only misrepresentation he made was that his ATM card was valid and Safeway did not rely on his but rather on the computer authorization. However, despite the glitch in the computer authorization system, Safeway relied on defendant's representation that his card was valid.id: 10459
Section 666 priors are elements of the offense and provable in open court.Defendant was charged with three counts of petty theft after a prior theft related conviction (Penal Code section 666). He argued counsel was incompetent for failing to argue that the priors in section 666 should be treated as enhancements and subject to a bifurcated proceeding. However, the priors in section 666 are elements of the crime and provable in front of the jury.id: 10460
Stealing the bag from the grocery cart constituted grand theft from the person.When the victim left the market she was pushing a shopping cart containing a bag of groceries she had purchased in the store. Appellant grabbed the bag from the cart and ran off. Evidence supported the court's finding sustaining the allegation the minor committed grand theft from the person.id: 10461
Temporarily increased penalty was appropriate for defendant convicted of vehicle theft during the effective period of the enhanced penalty, even though his conviction was not final until after the sunset date.In 1989 the Legislature amended Vehicle Code section 10851, effective January 1, 1990, to increase the maximum punishment for vehicle theft from three years to four. The 1989 legislation provided that the lesser pre-1990 punishment would be reinstated as of January 1, 1993, unless the Legislature, before the latter date, otherwise directed. The Legislature did not so direct. Accordingly, the lesser punishment was reinstated as provided in the 1989 statute. The Supreme Court found in the instant case that one who committed vehicle theft during the effective period of the provision for increased punishment, but whose conviction for that offense was not yet final as of the sunset date of the provision, can be sentenced thereunder.id: 10462
Tenant who embezzled a refrigerator was properly charged under section 484 and was subject to the section 666 felony enhancement.Defendant sold a refrigerator he took without permission from the apartment he was renting and was charged with petty theft with a prior conviction of a theft-related offense (Penal Code sections 484 and 666). The court granted defendant's motion to set aside the information on the ground that the crime could not be charged under the general theft statute because it factually fell within a specific statute defining tenant conversions as embezzlements (Penal Code section 507). However, the court's ruling was erroneous. Because there is no conflict between the elements to prove, or the punishment for, embezzlement under section 484 and embezzlement defined in section 507, defendant was properly charged under section 484 and was subject to the felony enhancing provisions of section 666.id: 10463
Theft of a purse on the floor with the victim's foot pressed against it constituted grand theft from the person.Victim was in a salon having a fingernail repaired. She placed her purse on the floor and pressed her foot against it to make sure she knew where it was. The purse was in contact with her foot the entire time. Defendant grabbed the purse and ran out the door. Evidence supported the conviction of grand theft person.id: 10466
Vehicle theft and receiving stolen property convictions were proper where the former was based on defendant's driving the stolen vehicle rather than the actual theft of the truck.Defendant argued that his convictions for violating Vehicle Code section 10851 (vehicle theft) and Penal Code section 496 (receiving stolen property) were improper because a person cannot be convicted of stealing and receiving the same property. However, the two convictions were proper because the vehicle theft conviction was based on defendant's <U>driving</U> of the stolen truck. There was no independent evidence linking him to the theft of the truck.id: 10467
Where a vehicle is kept for an excessive time or driven an excessive distance, as a matter of law, it cannot be joyriding.Defendant was convicted of unlawfully driving or taking a motor vehicle in violation of Vehicle Code section 10851, subdivision (a). He argued the court erred in not instructing the jury sua sponte on the lesser included offense of joyriding. However, defendant kept the car more than five months and drove it approximately 24,000 miles. There was no evidence that he intended to return the car. Where the car is kept for an excessive time or driven an excessive distance, the offense, as a matter of law, is not joyriding within the meaning of Penal Code section 499b.id: 10469
Willful diversion of construction funds under section 484b is a general intent crime.Defendant was convicted of willful diversion of construction funds pursuant to Penal Code section 484b. He argued that section 484b defines a specific intent crime and the court erred when it instructed the jury the offense was one requiring only a general criminal intent. However, the willful diversion of construction funds is a general intent crime and the jury was properly instructed.id: 10471
Chiropractor was guilty of theft by false pretenses where he sent false billings to his clients' attorneys knowing the claims would be forwarded to the insurers.Defendant chiropractor was charged with multiple counts of insurance fraud and theft by false pretenses (Penal Code section 487) for his part in a series of staged automobile accidents. He argued the grand theft convictions were improper because there was no evidence that he or his agents made false representations directly to the insurance companies or their agents. However, a defendant is guilty of theft by false pretenses if he or she causes a false representation to be made. Here the lawyers were the conduit for the fraudulent claims. Defendant sent the billings to the attorneys, knowing they were representing his patients in the personal injury claims and knowing they would forward the bills to the insurers.id: 10414
Convictions for driving (not taking) a stolen vehicle and receiving the same vehicle were not improper.Appellant argued that his convictions for stealing and receiving the same vehicle were improper. However, auto theft under Vehicle Code section 10851 involves either taking or driving and a defendant may not be convicted of both stealing and receiving the same vehicle where the auto theft is premised upon taking. In this instance, defendant's auto theft conviction was premised on his driving the vehicle and as such convictions of both offenses were not improper.id: 10415
Court did not err in instructing that defendant's prior conviction was a felony since this is not a question of fact for the jury.Defendant was convicted of possession of a firearm by a felon (Penal Code section 12021, subdivision (a)). The prior conviction that formed the basis of the charge was a petty theft with a prior conviction (section 666). Defendant argued the trial court erred in instructing that the prior conviction was a felony. However, whether an offense is a felony or a misdemeanor is a question of law for the court and not a question of fact for the jury. Moreover, the record established the prior conviction was a felony. That the verdict form in the prior case showed defendant was only convicted of petty theft was not dispositive, since defendant had admitted the priors alleged as elements of the offense to prevent the jury from learning about them.id: 10417
Defendant was properly convicted of receiving stolen property despite strong evidence that he was the thief where he denied stealing the property.Defendant argued he could not be convicted of receiving stolen property because the evidence established he was the one who stole it. However, he denied taking the property so there was a question as to the thief's identity. A conviction for receiving stolen property may be based on evidence that the property in question was stolen, that defendant was in possession of it, and that the defendant knew the property was stolen, even though the evidence also strongly suggests it was defendant who stole the property.id: 10421
Defendant was properly convicted of theft by false pretenses despite the fact that the victim retained a security interest in the stolen property.Defendant argued his conviction of grand theft should be reversed because the crime he committed was theft on a theory of larceny by trick, rather than theft by false pretenses. He claimed that since the victim retained a security interest in the lumber, it could not have been intended that he acquire full and complete title, rather than mere possession, of the lumber. However, defendant was properly convicted of theft by false pretenses, despite the fact a security interest was retained in the stolen property by the victim. That the crime might also have been theft on a theory of larceny by trick did not require reversal of the theft conviction.id: 10422
Deputy sheriff was properly convicted of embezzlement after using his patrol car to steal a lawnmower.Defendant, a deputy sheriff, was convicted of felony embezzlement under Penal Code section 504 as he used his assigned sheriff's department vehicle to steal a lawnmower. He argued his conviction could not properly be based on his momentary usage of the vehicle. While defendant's use of the vehicle was brief, he appropriated the property to a purpose not in the due and lawful execution of his trust. However, the court reduced the offense from felony to misdemeanor embezzlement after finding the limited use of the vehicle cost the county less than $400.id: 10424
Embezzlement under section 484c is committed where the author of the voucher falsely states that a named payee actually has performed or will perform work.Penal Code section 484c provides that embezzlement occurs when a person presents a voucher to obtain construction loan funds and does not use the funds for the purpose for which the claim was submitted. Defendant argued the statute is not violated if the loan funds are used for bona fide construction costs. However, where the author of the voucher falsely states that a named payee actually has performed or will perform work section 484c is violated. It did not matter that defendant was as good as the licensed contractor listed on the voucher.id: 10426
Evidence did not establish the lender had no alternative but to approve the voucher and the court did not err in presenting the theft by false pretense theory to the jury.Defendant real estate developer was convicted of grand theft where he obtained money from a construction lender by misrepresenting to the lender the funds would be used to pay a contractor to supervise a project and defendant who was not a licensed contractor supervised the project and kept the money. He argued the court instructed on the erroneous theory of theft by false pretenses. He argued the theory did not apply because he did not procure the loan through fraud and once the agreement was signed the lender had no choice but to approve every disbursement. Thus, defendant claimed, the lender relied on the contractual obligation and not upon representations concerning defendant's involvement in the project. However, there was no express term requiring the lender to rubber stamp each disbursement request no matter now false or inaccurate.id: 10429
Evidence did not support claim-of-right defense instructions to embezzlement charge where the union officer misappropriated union funds which he claimed were due him for work done.No substantial evidence of a claim-of-right defense was presented to the embezzlement charge. Even if true, defendant's unilateral determination and unvoiced belief that the money was owed to him by the union for his work as treasurer is completely insufficient under Penal Code section 511. An employee may not simply decide that he or she should be paid more than the employer has agreed to pay and then take the money from the employer without authorization. Such misappropriations constitute embezzlement and no claim-of-right defense is applicable. Thus, no claim-of-right instructions were required.id: 10432
Evidence supported receiving stolen property conviction notwithstanding the possibility that defendant may have stolen the property.Defendant argued that he could not be convicted of receiving stolen property because the prosecution's evidence did not exclude the possibility that defendant himself had stolen the weapons. Typically, a defendant may not be convicted of stealing and receiving the same property. This does not mean, however, that when the prosecution has charged only receiving, it must establish by affirmative proof that someone other than defendant stole the property.id: 10435
Evidence supported the conviction of receiving stolen property for passenger in a stolen car who was in a position to exert control over the vehicle.Defendant was convicted of receiving stolen property (Penal Code section 496(a)) after he was found to have been a passenger in the stolen car. He argued the conviction was erroneous because there was no evidence he possessed or exerted dominion and control over the car. However, from the facts of appellant's close relationship to the driver, use of the vehicle for a common criminal mission, and stops along the way before abandoning it (during which appellant made no effort to disassociate himself from his friend or the stolen vehicle) a reasonable juror could infer defendant as the passenger, was in a position to exert control over the vehicle. This inference, in turn, would support a finding of constructive possession.id: 10436
Evidence supported the grand theft conviction where appellant implied he would act legally in clearing up the victim's credit problems.Appellant was convicted of grand theft by false pretenses. He provided a credit improvement service and charged the victim $980. She presumed appellant's service was a legal one and would not have paid had she known he was acting illegally. Her presumption was reasonable because parties to a contract are presumed to intend lawful execution of their promises. Moreover, the existence of the new credit reports giving the victim a new identity demonstrated appellant did not intend to perform his promise in a legal manner.id: 10437
Four grand theft convictions were proper where money was taken from four separate victims despite the claim of a single overall plan.Defendant argued that he should stand convicted of only one count of grand theft instead of four because all of the takings were pursuant to one overall scheme or plan. Each victim gave defendant funds for a bond which turned out to be worthless, funds which were never returned. In addition, as to each count, defendant's employer was cheated out of its premium. Thus it could not be argued there was a single victim as to each theft.id: 10438
Grand theft instruction was not required where the evidence showed the offense, if committed by defendant, was robbery.Defendant argued the trial court prejudicially erred in failing to instruct sua sponte on the crime of grand theft as a lesser included offense of robbery. However, there was no evidence that the offense, if committed by defendant, was other than robbery.id: 10439
A defendant may be convicted of unlawfully taking and receiving the same vehicle.Defendant argued he could not be convicted of both unlawfully taking (Vehicle Code section 10851) and receiving the same vehicle (Penal Code section 496), and the jury should have been so instructed. The fact that defendant stole the vehicle no longer bars a conviction for receiving stolen property. However, where the prosecutor refused to elect to proceed exclusively on an unlawful driving theory under section 10851 and insisted on presenting the alternative theories of both unlawful driving and unlawful taking, the jury should have been instructed the dual convictions would be improper. However, any error was harmless where defendant was indisputably driving the truck when he was arrested and no reasonable jury would find that at the time he was still involved in the original taking.id: 10408
A Department of Public Safety manager who falsified her time cards and accepted pay for work not performed was properly convicted of misappropriating public funds.Defendant was convicted of misappropriating public funds under Penal Code section 424. She argued there was no evidence to show that she was a person charged with the receipt, safekeeping, transfer or disbursement of public monies. However, section 424 applies to defendant because in her position as a manager with the Department of Public Safety she had the authority to authorize her own pay without the approval of her superior. Because the authorization of a pay warrant to a public worker results in the disbursement of public moneys, any fraudulent authorization amounts to misappropriation of public funds and is a violation of the section.id: 10409
A one-year enhancement may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior.A one-year sentence enhancement under Penal Code section 667.5, subd. (b) may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior under Penal Code section 666.id: 10410
A prior felony which is an element of the current charge must be submitted to the trier of fact and proven in open court.Appellant was accused of petty theft with a prior felony conviction under Penal Code section 666. He argued that since he was willing to stipulate to the prior felony convictions, the trial court committed prejudicial error in allowing the prosecution to introduce his prior felony theft convictions in evidence. However, pursuant to the explicit mandate of California Constitution Article 1, section 28, subdivision (f), a felony conviction which is an element of the current charge must be submitted to the trier of fact and proven in open court.id: 10411
Auto theft cases not final upon the effective date of the sunset clause are not entitled to the more lenient sentence.The Legislature increased the penalties for violation of Vehicle Code section 10851, subd.(a) in 1989 and added a sunset clause providing for a return to the earlier penalties effective January 1, 1993. However, the addition of the sunset clause to the statute with a declared purpose of its amendment constitutes a savings clause and should not be applied to persons whose cases were not yet final at the end of 1992.id: 10412
CALJIC 2.15 does not permit an improper inference, but instead, protects a defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.Defendant argued that notwithstanding the express admonition in CALJIC No. 2.15, that possession alone is insufficient to warrant a conviction of robbery or burglary, the instruction in effect tells jurors that such evidence, if corroborated is sufficient. He claimed this permitted an inference or presumption based on insufficient foundational facts and thereby violates a defendant's rights under the Sixth, Eighth and Fourteenth Amendments. However where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC 2.15 protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.id: 10413
Defendant may be properly convicted of burglary and receiving stolen property, subject to section 654.Defendant argued he could not be convicted of burglary and receiving stolen property. However, because burglary requires only unconsented entry with the intent to commit theft or another felony and receiving stolen goods involves the knowing, receiving, concealing or withholding of goods obtained by theft or extortion, defendant may be convicted of both crimes, subject to Penal Code section 654.id: 10351
Intent to commit theft for burglary was established where good funds and bad funds were commingled in a bank account and defendant attempted to withdraw an amount not exceeding the good funds.Defendant argued the evidence was insufficient to support a finding of intent to commit theft where he attempted to withdraw less than the cash he deposited in an account in which he had also deposited invalid money orders. However, when good funds and bad funds are commingled in a bank account, an attempt to withdraw an amount not exceeding the good funds does not preclude a finding of intent to commit theft. Because the evidence strongly demonstrated a common scheme of defrauding various banks and because the legal and illegal funds deposited in this account were not distinguishable, evidence supported a finding of intent to commit theft.id: 10363
A non-theft-related burglary can be used to elevate petty theft to a felony.A non-theft-related burglary can be used to elevate petty theft to a felony under Penal Code section 666. The interference with the possessory rights of another is a common thread which finds burglary and theft whether or not the burglary was committed with theft in mind.id: 10331
CALJIC 2.15 is appropriate in a robbery as well as receiving stolen property charge.CALJIC 2.15 provides that possession of stolen property is insufficient by itself to prove robbery and that corroborating evidence is necessary. Defendant argued the instruction is appropriate only in a receiving stolen property case and that it violated due process by lessening the prosecution's burden of proving every element beyond a reasonable doubt. However, the instruction is appropriate when the crime charged is theft, robbery, or knowingly receiving stolen property. Moreover, the instruction creates only a permissive inference and therefore does not relieve the prosecution of any burden of establishing proof beyond a reasonable doubt.id: 10088
Receiving stolen property is not a necessarily included offense of operating a chop shop.Vehicle Code section 250 provides that for property to fall within the definition of operating a chop shop, it must be obtained by theft, fraud, or conspiracy to defraud. Property acquired through fraud does not fall under the definition of receiving stolen property. It applies only to property obtained by theft or extortion. Because a person may be guilty of operating a chop shop without committing the offense of receiving stolen property, the latter offense is not necessarily included within the former.id: 9897
Joyriding and unlawful taking of a vehicle are not necessarily included offenses of kidnapping during a carjacking.Defendant argued the trial court erred in refusing to instruct on unlawful taking of a vehicle (Vehicle Code section 10851, subdivision (a)) and joyriding (Penal Code section 499b) as lesser included offenses of kidnapping during the commission of a carjacking (Penal Code section 209.5). However, the latter offense can be committed without committing the former offenses and therefore those offenses are not necessarily included. Moreover, since the evidence, if believed, supported a finding of an offense including kidnapping and force and fear, it was not error for the court to refuse instructions on the lesser theft offenses. The offenses were likewise not lesser related offenses given the disparate societal interests protected by the charged offense and claimed lesser related offenses.id: 9767
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850