People v. Brady, A051997

• Citation: 234 Cal.App.3d 954,286 Cal.Rptr. 19
• Decision Date: 27 September 1991
• Docket Number: No. A051997,A051997
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Scott Patrick BRADY, et al., Defendants and Respondents.

Page 19

286 Cal.Rptr. 19

234 Cal.App.3d 954

The PEOPLE of the State of California, Plaintiff and Appellant, v. Scott Patrick BRADY, et al., Defendants and Respondents.

No. A051997.

Court of Appeal, First District, Division 5, California.

Sept. 27, 1991.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Violet M. Lee, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Rodney R. Jones, Fort Bragg (under appointment by the Court of Appeal), Paul Couenhoven, Berkeley (under appointment by the Court of Appeal), for defendants and respondents.

LOW, Presiding Justice.

We hold that the illegal taking and killing of abalone from coastal waters may not be punished as grand theft under Penal Code section 487, subdivision (1), although it is punishable under several provisions of the Fish and Game Code. ¹ We affirm the order setting aside count two.

Defendants were observed by fish and game officers illegally taking 196 abalone from the coastal waters off the Mendocino Coast, an area where commercial fishing for abalone is prohibited. When confronted by the officers, defendants lied about their activities and insisted they caught and consumed only a single abalone, outside the prohibited zone. They refused to declare their catch when demanded by the officers. The illegal catch was discovered in a hidden compartment aboard the defendants' boat, well concealed beneath the carpeted floor between the cabin and the fuel tank. Lieutenant Morse confiscated the shellfish and sold 175 of the illegal catch to a fish broker for $15 each, for a total of $2,625.

Defendants moved to set aside count two, charging grand theft, on the ground that their activities did not constitute theft of personal property. In granting defendants' Penal Code section 995 motion, the trial court concluded, "[A]s the law stands in the State of California at the present time abalone are farae [sic] naturae, they are not owned by anybody until they are harvested." In denying the People's later motion for reconsideration, the trial court determined that "[w]ild animals, birds and fish are not the subjects of larceny until caught or killed." The court also concluded, "The Legislature has proscribed the 'taking' of abalone except as permitted by the Fish and Game Code and administrative regulations promulgated thereunder.... And it has imposed misdemeanor penalties for violations of these laws.... In so doing, it has not manifested any intent to treat illegal takings of fish or game as larceny and, hence, subject to the penalties imposed by Penal Code section 487."

As used here, the crime of theft, i.e., larceny, is defined as the taking and carrying away of the personal property of another, with the intent to deprive the owner of the property permanently. (Pen.Code, § 484; People v. Earle (1963) 222 Cal.App.2d 476, 477-478, 35 Cal.Rptr. 265; Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 4, § 1, p. 292.) In most cases the crime becomes grand theft when the property taken exceeds $400. In certain circumstances the unlawful taking of lesser valued property is grand theft. Penal Code section 487, subdivision (1) provides: "When the money, labor or real or personal property taken is of a value exceeding four hundred dollars ($400); ... provided, further, that when fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding one hundred dollars ($100)...."

The People contend that the abalone taken here fall under the general definition of personal property, and since their value exceeded $400, defendants may be charged with grand theft. They argue that the state owns the abalone found in its coastal waters and their unlawful taking is theft just as in any felonious taking of a private individual's personal property.

The question is whether the abalone, illegally taken from the state's coastal waters, can be considered "personal property" of the state within the meaning of the statute.

I

A

Larceny is an offense against a person's proprietary or possessory interest in property. California has followed the long-accepted rule that an individual has no personal property right in wild animals or fish unless captured, tamed or otherwise reduced to possession. (Civ.Code, § 656; Takahashi v. Fish and Game Com. (1947) 30 Cal.2d 719, 728-729, 185 P.2d 805, revd. on other grounds in 334 U.S. 410, 421, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478; Ex parte Maier (1894) 103 Cal. 476, 483, 37 P. 402; Ex parte Bailey (1909) 155 Cal. 472, 475, 101 P. 441; Douglas v. Seacoast Products, Inc. (1977) 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304.) At common law and before, it was not larceny to take or kill a wild animal since, in their natural state, they are owned by no one. (2 Jones' Blackstone (1976) pp. 2446-2447.) Rather, wild animals were considered "owned" by the government in its sovereign capacity as trustee for the benefit of its citizens. (Ex parte Maier, supra, 103 Cal. at p. 483, 37 P. 402; Takahashi, supra, 30 Cal.2d at pp. 728-729, 185 P.2d 805.)

The term "ownership" should not be taken to imply that the state has title to these and other wild animals. "A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. [Citations.] The 'ownership' language ... must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citations.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." (Douglas v. Seacoast Products, Inc., supra, 431 U.S. at pp. 284-285, 97 S.Ct. at pp. 1751-1752; accord, Hughes v. Oklahoma (1979) 441 U.S. 322, 334-335, 99 S.Ct. 1727, 1735-1736, 60 L.Ed.2d 250.)

An individual's right to hunt and fish is a qualified right subject to the authority of the Legislature to impose conditions it deems necessary for the public good. (People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 563, 234 P. 398; People v. Truckee Lumber Co. (1897) 116 Cal. 397, 400-402, 48 P. 374.)

In upholding the state's authority to criminalize the sale of deer meat whether caught within the state or outside its borders, the court in Ex parte Maier, supra, 103 Cal. 476, 37 P. 402, held, "The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good." (Id., at p. 483, 37 P. 402; accord, Takahashi v. Fish and Game Com., supra, 30 Cal.2d at pp. 728-729, 185 P.2d 805.)

This is the contemporary view. (See United States v. Long Cove Seafood, Inc. (2d Cir.1978) 582 F.2d 159, 163-164; United States v. Tomlinson (D.Wyo.1983) 574 F.Supp. 1531, 1535; 2 LaFave & Scott, Substantive Crim. Law (1986) § 8.4, p. 349; Perkins & Boyce, Criminal Law, op. cit. supra, ch. 4, § 1, pp. 292-295.) Civil Code section 656 recognizes the limited ownership rights in wild animals. That section reads: "Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued."

We conclude that like other wild game, the abalone caught in the state's coastal waters belong to the people of the State of California in their collective, sovereign capacity. No individual property right exists in these shellfish. Rather, the state acts as trustee to protect and regulate them for the common good. In this representative capacity the state does not have a proprietary interest in these abalone that can be equated with the personal property of the state. (Cf. State v. Lee (Fla.1949) 41 So.2d 662 [a domesticated pet deer, owned by Florida Game & Fresh Water Fish Com., is the subject of larceny].) We conclude these 196 abalone cannot be construed to be the "property of another" within the meaning of sections 484 and 487 of the Penal Code.

B

An examination of the language of the theft statute supports this conclusion. Penal Code section 487, subdivision (1) makes the taking of certain items the subject of larceny, which were not considered to be larceny under the common law. At common law, the stealing of one's labor or services, real property, crops (if severed and carried away immediately), evidence of debt or other written instruments and even the family dog were not crimes of larceny. (Perkins & Boyce, Criminal Law, op. cit. supra, ch. 4, § 1, p. 292 et seq.; 2 LaFave & Scott, Substantive Crim. Law, op. cit. supra, § 8.4, pp. 349-351.) But this has been changed by statute. Penal Code section 487, subdivision (1) now makes it a crime to take labor, real property and crops, of a particular value. Penal Code section 495 makes it larceny to sever or take a fixture from real property. Personal property subject to theft now includes written instruments (Pen.Code, §§ 492, 494), and tickets for public conveyances (Pen.Code, § 493), neither of which were the subject of larceny at common law. Further, the Legislature has expressly made dog stealing a theft offense. (Pen.Code, § 491; also People v. Sadowski (1984) 155 Cal.App.3d 332, 335-336, 202 Cal.Rptr. 201 [cat stealing is larceny].)

Having chosen to change the common law and criminalize the taking of some property...