Friday, June 28, 2013

The Electronics Store, Burglary and the Laptops

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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