People v. Avery

• Decision Date: 17 January 2002
• Docket Number: No. S092426.,S092426.
• Citation: 38 P.3d 1,27 Cal.4th 49,115 Cal.Rptr.2d 403
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Derwin AVERY, Defendant and Appellant.

115 Cal.Rptr.2d 403

27 Cal.4th 49

38 P.3d 1

The PEOPLE, Plaintiff and Respondent, v. Robert Derwin AVERY, Defendant and Appellant.

No. S092426.

Supreme Court of California.

January 17, 2002.

Rehearing Denied February 20, 2002.

Randy Baker, under appointment by the Supreme Court, Berkeley, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Rene A. Chacon and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Under California law, theft requires an intent to permanently deprive another of property. (See People v. Ortega (1998) 19 Cal.4th 686, 693, 80 Cal.Rptr.2d 489, 968 P.2d 48.) We granted review to determine whether this 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. We conclude such an intent is sufficient.

I. Procedural History

A court convicted defendant of arson and found true that he had suffered a prior serious felony conviction, specifically, a 1983 Texas conviction for burglary. Regarding the burglary conviction, the record shows that defendant had been charged by indictment in Texas with entering a habitation of another with the "intent to commit theft," and he pleaded no contest to "burglary of a habitation with intent to commit theft." The record provides no other information about the nature of the Texas burglary.

On appeal, defendant argued that, for a number of reasons, the evidence was insufficient to show that the Texas conviction was a serious felony under California law. The Court of Appeal agreed with one of defendant's arguments, finding that the intent requirement for theft under Texas law did not satisfy the similar requirement under California law. In light of this conclusion, the court stated it "need not address [defendant's] other contentions challenging the finding."

We granted the People's petition for review and limited the issue to be briefed and argued to "whether the intent to take property temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfies the intent requirement of theft under California law."¹

II. DISCUSSION

A. The Issue

"Various sentencing statutes in California provide for longer prison sentences if the defendant has suffered one or more prior convictions of specified types." (People v. Woodell (1998) 17 Cal.4th 448, 452, 71 Cal.Rptr.2d 241, 950 P.2d 85.) A prominent example is a conviction of a "serious felony" as defined in Penal Code section 1192.7, subdivision (c).² Conviction of a serious felony has substantial sentencing implications under the "Three Strikes" law (People v. Woodell, supra, 17 Cal.4th at p. 452, 71 Cal.Rptr.2d 241, 950 P.2d 85) and also under section 667, subdivision (a)(1), which mandates a five-year sentence enhancement for each such conviction. To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California. To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime. (People v. Woodell, supra, 17 Cal.4th at p. 453, 71 Cal.Rptr.2d 241, 950 P.2d 85.)

In this case, the record of conviction merely showed that defendant pleaded no contest to "burglary of a habitation with intent to commit theft...." On this record, therefore, we know nothing about the nature of the Texas crime beyond its statutory requirements and the fact that the underlying intent was to commit theft. If this conviction qualifies as serious, it is under section 1192.7, subdivision (c)(18), which, at the time relevant here, provided that "[b]urglary of an inhabited dwelling house" is a serious felony.³ So the question is whether a Texas conviction of "burglary of a habitation with intent to commit theft" under Texas law necessarily involves conduct that would qualify as "[b]urglary of an inhabited dwelling house" under California law.

In California, burglary requires "the intent to commit grand or petit larceny or any felony." (§ 459.)⁴ The record of conviction shows that the Texas conviction involved the intent to commit "theft," which would appear to satisfy the California intent requirement. Defendant's argument, however, and what the Court of Appeal concluded, is that theft in Texas is not necessarily theft in California. The statutory elements of theft in Texas are different, or at least appear different, than the elements in California. If it is possible to intend theft under Texas law but not under California law, then the Texas conviction would not necessarily be a serious felony in California.

California courts have long held that theft by larceny requires the intent to permanently deprive the owner of possession of the property. (People v. Brown (1894) 105 Cal. 66, 38 P. 518.) The Texas theft statute, however, requires only the "intent to deprive the owner of property." (Tex. Penal Code Ann. § 31.03, subd. (a).) "Deprive" is defined as "withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner...." (Tex. Penal Code Ann. § 31.01, subd. (2)(A).) Relying heavily on People v. Marquez (1993) 16 Cal.App.4th 115, 20 Cal. Rptr.2d 365 (Marquez), the Court of Appeal held that this broader statutory language means that a person can intend to commit theft in Texas without intending to commit theft in California. Because, on this record, it could not determine exactly what defendant's intent was regarding the prior burglary, it concluded "that the evidence fails to support a finding that [defendant] had the intent to commit theft as defined under California law."

Thus, the issue is squarely presented: does the intent to deprive the owner of 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, satisfy the California requirement of intent to deprive the owner of the property permanently?

B. Resolution of the Issue

Marquez, supra, 16 Cal.App.4th 115, 20 Cal.Rptr.2d 365, confronted this issue in a case involving an Oregon statute with language similar to that of Texas. The court concluded the statute did not satisfy the California intent requirement. "The intent to acquire, or deprive an owner of, `the major portion of the economic value or benefit' of his or her property is not equivalent to the intent to permanently deprive an owner of his or her property. A person who intends only to temporarily deprive an owner of property, albeit while acquiring or depriving the owner of the main value of the property, does not intend to permanently deprive the owner of the property and therefore does not have the intent to commit theft, as that crime is defined under California law." (Id. at p. 123, 20 Cal.Rptr.2d 365.) Recently, another Court of Appeal disagreed with Marquez and concluded that the Oregon statute broke "no new ground" but was consistent with the California intent requirement. (People v. Zangari (2001) 89 Cal.App.4th 1436, 1447, 108 Cal.Rptr.2d 250, review granted Oct. 10, 2001, S099489, opn. ordered published Jan. 17, 2002.)

In Davis, supra, 19 Cal.4th 301, 79 Cal. Rptr.2d 295, 965 P.2d 1165, we held that the intent to take property from a store in order to return it for a refund satisfied California's intent requirement even though that intent was not literally to permanently deprive the store of the precise property taken. We explained that the rule that theft requires the intent to deprive the owner of the property permanently "is not inflexible: `The word "permanently," as used here is not to be taken literally.'" (Id. at p. 307, 79 Cal.Rptr.2d 295, 965 P.2d 1165, quoting Perkins & Boyce, Criminal Law (3d ed.1982) p. 327 (hereafter Perkins).) We discussed briefly, but did not decide, whether Marquez, supra, 16 Cal.App.4th 115, 20 Cal.Rptr.2d 365, was correct. "We have found no California case in which the defendant had the intent hypothesized by the court in Marquez, supra, 16 Cal.App.4th at page 123, 20 Cal.Rptr.2d 365.... If and when such a case arises in California it will be time enough to determine whether that rule is in fact part of the common law of larceny of which Penal Code section 484 is declaratory." (Davis, supra, 19 Cal.4th at p. 318, fn. 15, 79 Cal.Rptr.2d 295, 965 P.2d 1165.)

The time has now come to decide the question, although, due to the way in which it arises, we do so in the abstract without a concrete factual context. We now conclude that an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment satisfies the common law, and therefore California, intent requirement. We start by noting that California's statute does not itself expressly require an intent to permanently deprive. Rather, it merely says that, to be guilty of theft, the person must "feloniously steal" the property; it does not further define the intent requirement. (§ 484, subd. (a).) But the "statute is declaratory of the common law" and so includes the common law intent requirement. (Davis, supra, 19 Cal.4th at p. 304, fn. 1, 79 Cal.Rptr.2d 295, 965 P.2d 1165.) The reference to the intent to permanently deprive is merely a shorthand way of describing the common law requirement and is not intended literally. Thus, to determine the exact nature of California's intent requirement, we must turn to the common law.

In Davis, we discussed various factual circumstances involving arguably temporary takings that courts and commentators have found constitute theft. We discerned "three relevant categories of cases holding that the requisite intent to steal may be found even though the defendant's primary...