Metropolitan News-Enterprise


Friday, January 18, 2002


Page 1


State High Court Clarifies Intent Element of Theft Charge


By KENNETH OFGANG, Staff Writer/Appellate Courts


Proof that a defendant intended to take property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfies the intent element of a theft prosecution in California, the state Supreme Court ruled yesterday.

The high court unanimously overturned a contrary ruling of the First District Court of Appeal, which had relied on an earlier Court of Appeal ruling, and reinstated a second-strike sentence imposed on an arsonist by a Superior Court judge in Lake County.

Robert D. Avery’s sentence was doubled under the three-strikes law, based on his 1983 Texas conviction for “burglary of a habitation with intent to commit theft.” The evidence of the prior conviction consisted solely of the charging, plea, and sentencing documents in the Texas case.

The First District panel reversed the enhancement on the ground that Avery might have been convicted of the Texas offense without intending to permanently deprive the victim of property—and thus that the prosecution failed to prove that the Texas crime constituted a serious felony under California law.

But Justice Ming Chin, writing for the Supreme Court yesterday, concluded that the intent element of theft under California law is the same as in Texas.

The Texas Penal Code, Chin explained, defines theft as the taking of another’s property with “intent to deprive the owner of the property.” The statute defines “deprive” as “withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.”

A 1993 Court of Appeal ruling, which held that an Oregon statute similar to Texas’ permitted a defendant to be convicted without intent to permanently deprive the owner of the taken property, was wrong, Chin said.

To be convicted of theft in California, the justice explained, one must intend to “feloniously steal” another person’s property. The requirement of intent to permanently deprive, Chin said, is based on the common-law understanding of what constitutes a felonious taking.

“The reference to the intent to permanently deprive is merely a shorthand way of describing the common law requirement and is not intended literally,” he explained.

Past cases in California and elsewhere, as well as commentaries on the common-law offense, make it clear that common-law theft may be committed without literally intending that the owner never get the property back, Chin said.

The high court, he noted, has approved of cases in other states holding that an intent to abandon stolen property under circumstances making it unlikely the owner will ever recover, or to take and retain it for an unreasonable period of time, will meet the common-law requirement.

Chin rejected the argument that the rule of lenity—the principle that ambiguities in interpreting criminal statues must be resolved in favor of the defendant—supports the Court of Appeal’s ruling. The rule does not apply, the justice said, when it conflicts with Penal Code Sec. 4’s requirement that the statutes “be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” 

Chin wrote:

“Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.  In this case…the language in section 484, subdivision (a), referring to an intent to ‘feloniously steal,’ reasonably construed, adopted the common law intent requirement.”

The case is People v. Avery, 02 S.O.S. 225.



Copyright 2002, Metropolitan News Company