Friday, November 28, 2008


A California Court of Appeals recently decided a case that involved the difference between a completed crime and an attempt to commit that crime.

The case is People v. Love, 166 Cal.App.4th 1292, 83 Cal.Rptr.3d 428 (Cal. App. 2008), and here are the facts that gave rise to the issue:
[Ms. Love] worked as a receptionist for dentist Hamid N. (Dr. Hamid) during February and March 2005. Rosa D. (Rosa), a patient of Dr. Hamid, noticed on her credit card statement a charge of $91.98 for flowers she had not ordered. An investigator determined that the purchase was made from Dr. Hamid's office computer on Valentine's Day, a date on which defendant worked. Defendant's brother . . . testified that he had asked defendant to order the flowers on his behalf; they were delivered to a woman he was dating. Defendant admitted ordering the flowers in a recorded phone conversation with her mother.

Another patient of Dr. Hamid, Sadiq M., discovered that someone had charged to his credit card a $500 Victoria's Secret gift card without his knowledge or consent. Investigators traced the order, finding it had been placed on March 25, 2005, in Dr. Hamid's name and listed his office address. The credit card company placed a hold on the purchase, preventing the gift card from being issued.
People v. Love, supra.

There were other, similar events. Ms. Love was eventually charged with 13 counts of “identity theft-based offenses . . . arising from abuse of her position of trust as a dental receptionist.” People v. Love, supra. We’re only concerned with one of those counts: Count 8, which was based on the March 25, 2005 charge for a Victoria’s Secret gift card.

In Count 8, Ms. Love was charged with “fraudulent use of access cards or account information” in violation of California Penal Code § 484g(a):
Every person who, with the intent to defraud, . . . uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been . . . obtained . . in violation of Section 484e or 484f,. . . is guilty of theft. If the value of all money, goods, services, and other things of value obtained in violation of this section exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft.
Sections 484e and 484f criminalize the act of using another person’s access card or access card information without their permission. Another section of the California Penal Code defines “access card” as “any card, plate, code, account number, or other means of account access that can be used . . . to obtain money, goods, services, or any other thing of value, or . . . to initiate a transfer of funds, other than a transfer originated solely by a paper instrument.’” California Penal Code § 484d(2).

So, in Count 8 Ms. Love was essentially charged with theft. She claimed she could not be charged with the completed crime of theft because the credit card company put a hold on the purchase: “Defendant contends that, because the credit card company cancelled the order and prevented the Victoria's Secret gift card from being issued pursuant to her use of Sadiq's credit card, her actions amounted to `at best’ an attempted theft under section 484g.” People v. Love, supra. So she’s saying that since she never got the $500 Victoria’s Secret gift card, she did not actually “obtain” money, goods, or “anything else of value” that did not really belong to her and could, at most, be charged with attempting to do so.

As I may have noted before, an attempt is what the law calls an inchoate, or incomplete, crime. When you charge someone with attempt, you by definition concede that they did not actually succeed in completing a crime; instead, you are pLovecuting them for trying to commit the crime. Often, attempt charges arise from situations – like this one – in which the would-be perpetrator’s effort to commit a crime is frustrated by outside forces. Even though the would-be perpetrator’s failure to commit the crime is not due to any change of heart on his or her part, we still cannot convict them of committing the crime they were intending to commit. It’s a basic, albeit implicit, premise of criminal law that you can only be convicted of, and punished for, what you actually succeed in doing.

To avoid having to let someone like this go scot free, Anglo-American law came up with the idea of prosecuting them for what they actually did . . . for trying to commit a crime (but failing). The charge we use to do that is attempt. As I tell my students, there is no free-standing offense of “attempt.” Instead, you necessarily attempt to commit a real, complete crime: the target crime. An attempt charge is always phrased like this: "Doe attempted to commit [the target crime]." If, therefore, you try to hire a hitman to kill your rich uncle and wind up “hiring” an undercover police officer, you have attempted to solicit the crime of murder and can be prosecuted for that.

(Actually, you could also be charged with attempting to commit murder, on the grounds that you would have been guilty of murder if the person you hired had really been a hitman and had actually killed your rich uncle. If all that happened, you would be guilty as an accomplice to the murder, which means you'd be guilty of murder.)

Here, Ms. Love is arguing that she tried to commit theft, but failed. So she’s claiming she can only be convicted of the attempt, which will carry a lesser penalty than actually committing theft. (It’s another premise of criminal law that we can’t punish you as severely for trying and failing to commit a crime as we can if you succeed.)

Unfortunately for Ms. Love, this court didn’t buy her argument:
Section 484g, subdivision (a). . . may be broken down into two elements: (1) that defendant `use[ ]’ the access card or account information, and (2). . . do so `for the purpose of obtaining money, goods, services, or anything else of value.’ . . .

The evidence at trial satisfied the first element of section 484g, subdivision (a)-defendant `use[d]’ the card. Merriam-Webster's New Collegiate Dictionary defines `use’ in such a context as `to put into action or service: avail oneself of: employ. . . . Defendant `use[d]’ or `put into . . . service’ Sadiq's access card information by entering it into an Internet Web page to place an order. The conduct described by the plain language of the statute is completed regardless of whether the object is obtained. . . .

The evidence also satisfied the second element that defendant's `use[ ]’ was `for the purpose of obtaining money, goods, services, or anything else of value.’ The obvious and undisputed purpose behind entering Sadiq's access card information into the Internet was to acquire the Victoria's Secret gift card.

Because the evidence established both elements described plainly in section 484g, subdivision (a), we find there was sufficient evidence to convict defendant of the completed offense.
People v. Love, supra.

Ms. Love lost because the crime defined by this statute is itself a type of inchoate crime. That is, it criminalizes PART of the conduct involved in actually carrying out a type of theft. One of the things we have seen in modern criminal law (especially in the United States) is a tendency to divide crimes up into parts, so that you can be charged for (and convicted of) each part. The implicit premise of this statute is that you (a) commit one crime by using the card for the purpose of obtaining money, goods, etc. and (b) commit another crime if you go further and actually obtain those items. So statutes like this are at once free-standing attempt provisions (that is, they don't require a target crime, as such) and provisions that can increase the liability imposed for what is, in effect, theft.

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