People v. Davis

• Decision Date: 05 November 1998
• Docket Number: No. S062739,S062739
• Parties: , 965 P.2d 1165, 98 Cal. Daily Op. Serv. 8223, 98 Daily Journal D.A.R. 11,400 The PEOPLE, Plaintiff and Respondent, v. Kenneth D. DAVIS, Defendant and Appellant
• Court: California Supreme Court

Page 295

79 Cal.Rptr.2d 295

19 Cal.4th 301, 965 P.2d 1165, 98 Cal. Daily Op. Serv. 8223,

98 Daily Journal D.A.R. 11,400

The PEOPLE, Plaintiff and Respondent, v. Kenneth D. DAVIS, Defendant and Appellant.

No. S062739.

Supreme Court of California

Nov. 5, 1998.

Anne V. Moore and John Hardesty, under appointments by the Supreme Court, Nevada City, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Robert Carl Schneider, Sanjay T. Kumar, Frederick Grab and Kerrigan M. Keach, Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, Justice.

We granted review to determine what crime is committed in the following circumstances: the defendant enters a store and picks up an item of merchandise displayed for sale, intending to claim that he owns it and to "return" it for cash or credit; he carries the item to a sales counter and asks the clerk for a "refund"; without the defendant's knowledge his conduct has been observed by a store security agent, who instructs the clerk to give him credit for the item; the clerk gives the defendant a credit voucher, and the agent detains him as he leaves the counter with the voucher; he is charged with theft of the item. In the case at bar the Court of Appeal held the defendant is guilty of theft by trespassory larceny. We agree, and therefore affirm the judgment of the Court of Appeal.

Facts

Defendant entered a Mervyn's department store carrying a Mervyn's shopping bag. As he entered he was placed under camera surveillance by store security agent Carol German. While German both watched and filmed, defendant went to the men's department and took a shirt displayed for sale from its hanger; he then carried the shirt through the shoe department and into the women's department on the other side of the store. There he placed the shirt on a sales counter and told cashier Heather Smith that he had "bought it for his father" but it didn't fit and he wanted to "return" it. Smith asked him if he had the receipt, but he said he did not because "it was a gift." Smith informed him that if the value of a returned item is more than $20 and there is no receipt, the store policy is not to make a cash refund but to issue a Mervyn's credit voucher. At that point Smith was interrupted by a telephone call from German; German asked her if defendant was trying to "return" the shirt, and directed her to issue a credit voucher. Smith prepared the voucher and asked defendant to sign it; he did so, but used a false name. German detained him as he walked away from the counter with the voucher. Upon being questioned in the store security office, defendant gave a second false name and three different dates of birth; he also told German that he needed money to buy football cleats, asked her if they could "work something out," and offered to pay for the shirt.

Count 1 of the information charged defendant with the crime of petty theft with a prior theft-related conviction, a felony-misdemeanor (Pen.Code, § 666, alleging that defendant did "steal, take and carry away the personal property" of Mervyn's in violation of Penal Code section 484, subdivision (a). ¹ In a motion for judgment of acquittal filed after the People presented their case, defendant argued that on the facts shown he could be convicted of no more than an attempt to commit petty theft, and therefore sought dismissal of the petty theft charge. (Pen.Code, § 1118.1.) The court denied the motion.

The only theories of theft submitted to the jury in the instructions were theft by larceny and theft by trick and device. The jury found defendant guilty of petty theft as charged in the information. Defendant waived further jury trial, and the court found the allegation of a prior conviction to be true. The court denied defendant's motion to treat the petty theft as a misdemeanor and sentenced him to state prison.

The Court of Appeal deemed defendant's primary contention to be that the evidence was insufficient to support his conviction of petty theft on either theory submitted to the jury. The court held defendant could properly have been convicted of theft by larceny; the court therefore declined to reach the alternate theory of theft by trick and device, and affirmed the judgment. We granted review.

I

When the formerly distinct offenses of larceny, embezzlement, and obtaining property by false pretenses were consolidated in 1927 into the single crime of "theft" defined by Penal Code section 484, most of the procedural distinctions between those offenses were abolished. But their substantive distinctions were not: "The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses." (People v. Ashley (1954) 42 Cal.2d 246, 258, 267 P.2d 271.)

The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. (See, e.g., People v. Earle (1963) 222 Cal.App.2d 476, 477-478, 35 Cal.Rptr. 265; People v. Edwards (1925) 72 Cal.App. 102, 112-116, 236 P. 944; CALJIC No. 14.02; Perkins & Boyce, Criminal Law (3d ed.1982) pp. 292-335 (hereafter Perkins).) The act of taking personal property from the possession of another is always a trespass ² unless the owner consents to the taking freely and unconditionally ³ or the taker has a legal right to take the property. (Perkins, supra, at pp. 303-304.) The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession. (Id. at pp. 326-327.) And if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation. (Id. at pp. 323-325.)

Applying these rules to the facts of the case at bar, we have no doubt that defendant (1) took possession (2) of personal property--the shirt--(3) owned by Mervyn's and (4) moved it sufficiently to satisfy the asportation requirement. Defendant does not contend otherwise.

Defendant does contend, however, that the elements of trespass and intent to steal are lacking. He predicates his argument on a distinction that he draws by dividing his course of conduct into two distinct "acts." According to defendant, his first "act" was to take the shirt from the display rack and carry it to Smith's cash register. He contends that act lacked the element of intent to steal because he had no intent to permanently deprive Mervyn's of the shirt; he intended to have the shirt in his possession only long enough to exchange it for a "refund." His second "act," also according to defendant, was to misrepresent to Smith that he had bought the shirt at Mervyn's and to accept the credit voucher she issued. He contends that act lacked the element of trespass because the store, acting through its agent German, consented to the issuance of the voucher with full knowledge of how he came into possession of the shirt.

Defendant's argument misses the mark on two grounds: it focuses on the wrong issue of consent, and it views that issue in artificial isolation from the intertwined issue of intent to steal.

To begin with, the question is not whether Mervyn's consented to Smith's issuance of the voucher after defendant asked to "return" the shirt; rather, the question is whether Mervyn's consented to defendant's taking the shirt in the first instance. As the Court of Appeal correctly reasoned, a self-service store like Mervyn's impliedly consents to a customer's picking up and handling an item displayed for sale and carrying it from the display area to a sales counter with the intent of purchasing it; the store manifestly does not consent, however, to a customer's removing an item from a shelf or hanger if the customer's intent in taking possession of the item is to steal it.

Although we have found no California case addressing the precise question, a recent decision of the Ohio Court of Appeals is relevant. In State v. Higgs (Ohio Ct.App. Jan. 12, 1990, No. WD-89-6) 1990 WL 1351, the defendant entered a Sears, Roebuck store and was observed on camera by store security agents as he removed a paper bag from his pocket, took a toy airplane from the merchandise display, and put it in the bag. He then carried the bag to a cashier and told her that the airplane had been a gift to his son but he was "returning" it because his son was too young for the toy. A security agent telephoned the cashier and instructed her to proceed with the transaction; the cashier gave the defendant a cash refund, and the security agents detained him. He was convicted of theft by larceny.

On appeal, the defendant contended inter alia that although the indictment charged theft of the toy airplane, the evidence showed the crime was, instead, theft of the cash refund by means of false pretenses; that the store, acting through its agents, consented to the refund and thereby vitiated an element of the crime; and that in any event the store also consented to customers' carrying merchandise around the store without first paying for it.

Rejecting those claims and affirming the conviction, the appellate court reasoned: "The fact that a retail store permits customers to carry merchandise from one area of the store to another does not imply consent to conceal the merchandise in a bag and return the same for a cash refund. [Citation.] This act, not the act of taking the refund, constituted the criminal offense for which appellant was charged.... [p] The fact that Sears consented to permitting a refund for the toy airplane was not relevant to the disposition of this case. The item unlawfully taken...