After he was convicted of burglary in violation of
California Penal Code § 459 and sentenced to four years in prison, Hoang V.
Nguyen appealed. People v. Nguyen, __
Cal.Rptr.3d __, 2013 WL 3013535 (California Court of Appeals 2013).
This, according to the opinion, is how Nguyen came to be
convicted of burglary:
[Nguyen] entered an electronics store
and walked to the computer department. One of the store's loss prevention
officers, Angel Gonzalez, saw [him] open a box, place something under it, and
leave the store. When Gonzalez checked the aisle where [Nguyen] had been, he
found a printer that had been removed from its box and placed on a bottom shelf
behind other items, but he was unable to locate a corresponding empty printer
box. Gonzalez took the printer, which retailed for about $100, to the front of
the store.
Soon after, [Nguyen] reentered the
store. Gonzalez watched on a security camera as [Nguyen] returned to the
computer department. He saw [him] pick up an opened box and bring out a roll of
tape from inside his jacket. At this Gonzalez left his station to confront [Nguyen].
When he arrived, Gonzalez found [Nguyen]
in the process of sealing a printer box. Looking inside, Gonzalez found two
laptop computers, which retailed for $450 each. Because of the positioning of
the computers in the box, it would have been difficult to tell from the outside
that they had been substituted for the cheaper printer. [Nguyen] was detained
and arrested.
People v. Nguyen,
supra.
At Nguyen’s trial, after both parties had presented their
evidence and rested, the judge
instructed the jury on burglary and
attempted grand theft by larceny. . . . As given by the court, the elements of
theft by larceny were (1) defendant took possession of property owned by
someone else, (2) defendant took that property without the owner's consent, (3)
when defendant took the property he intended to deprive the owner of it
permanently, and (4) defendant moved the property and kept it for a period of
time.
People v. Nguyen,
supra.
While they were deliberating, the jury
sent a note asking, `Are theft and
defraud the same? Meaning, because his intent to pay for a lesser item, is that
the definition of theft?’ The court responded, `. . . . The owner's consent
cannot be obtained by fraud or deceit.’ The court explained to counsel, `The
Court extrapolated that language from the theft-by-trick instruction. I
declined to give the entire theft-by-trick instruction, but I thought that
portion was appropriate in the context of this case.’
People v. Nguyen,
supra.
On appeal, Nguyen argued that the evidence presented at
trial
did not support a burglary conviction
based on intent to commit larceny, the theory of theft on which the jury was
instructed. He argues the
evidence supports a conclusion he intended to commit, if anything, theft by
false pretenses by disguising the laptop computers in the printer box, paying
the stated price for the printer at the sales counter, and, contrary to the
theory of larceny, `tak[ing] the laptops from the store with consent.’
People v. Nguyen,
supra (emphasis in the original).
The Court of Appeals began its analysis of his argument by
noting that the
statutory crime of theft is comprised
of several different common law crimes, including embezzlement, theft by
larceny, theft by trick or device, and theft by false pretenses. . . . In 1927,
these common law crimes were consolidated in Penal Code section 484 into
a single statutory crime. . . .
`The purpose of the consolidation was
to remove the technicalities that existed in the pleading and proof of these
crimes at common law. Indictments and informations charging the crime of
“theft” can now simply allege an “unlawful taking.” . . . Juries need no longer
be concerned with the technical differences between the several types of theft,
and can return a general verdict of guilty if they find that an “unlawful
taking” has been proved.’ People v.
Ashley, 42 Cal.2d 246 (California Supreme Court 1954).
People v. Nguyen,
supra.
This court noted, though, that
[t]he simplification envisioned by the
Legislature has not been entirely realized. Rather than following the lead of
the Legislature and collapsing the disparate theories of theft into a single
crime, the courts have maintained their separate existence.
People v. Nguyen,
supra.
It also explained that
[r]eported decisions suggest juries
continue to be instructed on the elements of the individual theories, rather
than being asked to render a general verdict of theft. Further complicating
matters, the trial judge must instruct on the proper theory of theft, since `the
[theft] offense shown by the evidence must be one on which the jury was
instructed and thus could have reached its verdict.’ People v. Curtin 22 Cal. App. 4th 528
(California Court of Appeals 1994). While technicalities of pleading may have
been eliminated by the consolidation, the technicalities of proof remain.
People v. Nguyen,
supra.
The court then noted that the
separate theories of theft are largely
`aimed at different criminal acquisitive techniques.’ People v. Ashley,
supra. Theft by larceny, the theory
on which the trial court instructed the jury, `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. . . .
The act of taking personal property
from the possession of another is always a trespass unless the owner consents
to the taking freely and unconditionally or the taker has a legal right to take
the property.’ (People v. Davis, 19 Cal.4th 301 (California Court of
Appeals 1998).
Because possession of the stolen item
must be gained without the owner's consent, larceny is classically a crime of
stealth. Given the `carrying away’ requirement, known as `asportation,’ it
necessarily applies to the theft of tangible items.
Embezzlement is
characterized by the wrongful taking of property voluntarily entrusted. It
therefore features acquisition by breach of trust. People v. Sisuphan, 181
Cal.App.4th 800 (California Court of Appeals 2010).
People v. Nguyen,
supra. (For more on asportation,
check out this Wikipedia entry.)
Next, the Court of Appeals pointed out that the
two remaining theories, theft by trick
or device and theft by false pretenses, are crimes of deception, involving the
taking of property of another after consent to its possession has been obtained
by fraud or deceit. The two are nearly identical in substance, except that with
theft by trick, the property owner transfers, and intends to transfer, only
possession, whereas with theft by false pretenses the owner transfers both
possession and ownership. . . .
[A] conviction for theft by false pretenses
is generally held to have `a special corroboration requirement’ not applicable
to theft by trick or device. People v. Curtin, 22 Cal.App.4th 528
(California Court of Appeals 1994). Although theft by trick or device and false
pretenses are often applied to the taking of money or intangibles, which are
less susceptible of asportation,
the elements of the two offenses do not limit their application to
intangibles. . . .
People v. Nguyen,
supra.
The court addressed one final prefatory issue before it
turned to Nugyen’s case:
The concept of valid consent was
further narrowed in . . . Davis, supra. In that decision, the defendant
was convicted of larceny after taking a shirt from its hanger in a department
store, carrying it to the sales counter, claiming to have purchased it earlier,
and requesting a refund. . . .
In affirming the conviction, the court held that
[Davis] took possession of the shirt by removing it from the hanger while still
in the store and satisfied the asportation requirement by carrying the shirt to
the sales counter. . . .
The court found trespass merely in [his]
taking the shirt from a hanger with the intent to steal it. Although
recognizing department stores are ordinarily presumed to consent to customers'
carrying items for sale within the store, Davis found no consent to
such transport if committed with a larcenous intent. . . .
People v. Nguyen,
supra.
The Court of Appeals then explained that the above
discussion revealed “the two flaws” in Nguyen’s argument. People
v. Nguyen, supra.
First, although he claims to have intended
`to take the laptops from the store with consent’
by paying the lower price for the printer, the store would not be deemed to
have `consented’ to [his] taking the laptops, at least for purposes of the law
of larceny, merely because store employees permitted him to leave the store
with them.
Rather, under the narrow view of retail
consent found in Davis, a customer has implied consent to take
items from the shelf only if he or she does so with honest intent. . . . Accordingly, [Nguyen] satisfied the elements
of larceny by picking up the laptop computers and placing them in the empty
printer box with the intent of taking them from the store without paying the
full laptop price.
He did not merely attempt or to
commit larceny, which would have been sufficient to satisfy the elements of the
charged offenses; under Davis, he could have been convicted of
the completed crime.
People v. Nguyen,
supra (emphasis in the original).
It then addressed the second flaw in his argument, noting
that this case was not
an `either/or’ situation. [Nguyen]
could have intended to commit both offenses, since the theories are not
mutually exclusive. Particularly given the narrow definition of `consent’
courts have adopted in connection with larcenous conduct, the use of deception,
rather than stealth, to steal tangible objects . . . can qualify both as theft
by larceny and false pretenses.
The narrow view of retail store consent adopted
by Davis creates a similar overlap in
that context. [Nguyen] cites no decisions holding that conduct constituting
theft must qualify under only a single legal theory. On the contrary, several
decisions have found the same conduct to constitute theft under more than one
common law theory. . . .
In support of his argument, [Nguyen]
relies primarily on People v. Lorenzo, 64 Cal. App. 3d Supp. 43
(California Court of Appeals 1976), in which the defendant was found to have
committed theft by false pretenses when he switched price tags on retail goods.
. . .
While Lorenzo supports the argument that [Nguyen’s] intended
conduct satisfied the elements of theft by false pretenses, the decision does
not hold that the same conduct could not also constitute theft by larceny,
since larceny was neither raised nor addressed in Lorenzo.
People v. Nguyen,
supra.
The court therefore held that because Nguyen’s conduct
satisfied the
elements of theft by larceny as defined
by the Supreme Court in Davis, the jury's implicit finding
that defendant entered the store with the intent to commit theft, and therefore
his conviction for burglary, was supported by substantial evidence. Whether his
conduct also constituted an attempt to commit theft by false pretenses is
immaterial to that issue.
People v. Nguyen,
supra.
For this and other reasons, it affirmed his conviction and
sentence. People v. Nguyen, supra.
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