Metropolitan News-Enterprise


Friday, March 9, 2007


Page 3


S.C.: Stealing of Phone Dropped During Victim’s Flight Is Grand Theft


By TINA BAY, Staff Writer


If an individual intending to steal from a victim causes property to become separated from the victim’s person and then gains possession of the property, he has  stolen “from the person” and is liable for grand theft, the California Supreme Court ruled yesterday.

The justices agreed 6-1 with a juvenile court judge that a local teen—identified in the opinion as Jesus O.—committed grand theft when his accomplice took a cellular phone that fell out of the pocket of another youth whom the two were attempting to rob. The jurists reversed a ruling by this Div. Seven of this district’s Court of Appeal, which held that the grand theft finding by Los Angeles Superior Court Commissioner Gary A Polinsky was not supported by substantial evidence.

The theft occurred in July 2004, when Jesus O. and another teen, identified as Roberto A. approached a youth identified as Mario H. in order to steal money from him. The pair had followed Mario. and his three companions into an alley after spotting the four at a McDonald’s restaurant in Van Nuys.

Mario told the two, who loudly announced themselves as “Assassin Kings” before accosting him, that he had no money. Jesus then punched one of the three companions in the mouth and a fight ensued, during which Roberto. pulled out a knife and threatened to “shank” Mario. .

Mario and his companions, scared, ran down the alley and jumped over a fence to flee, the court explained. During their escape, Mario’s cellular phone fell out of his pants pocket and onto the ground in the alley.  One of the three companions observed Roberto pick up the phone and put it in his pocket.

After a hearing in juvenile court, Polinsky found Jesus committed attempted second degree robbery and grand theft. Div. Seven upheld the attempted robbery finding, but reduced the other finding to petty theft reasoning there was not enough evidence to establish the cellular phone was taken “from the person,” as required by Penal Code Sec. 487(c) for grand theft.

A separate hearing for Roberto also resulted in a grand theft finding, which was reduced on appeal to petty theft for similar reasons.

But Justice Ming W. Chin, writing for the high court, said the evidence supported the finding that Jesus and Roberto had taken the cellular phone from the victim’s person with the intent to steal. This crime occurred in two steps, he explained:

“First, they wrongly caused the telephone to become separated from the person; then they actually gained possession of it.  The taking began with the initial assault, when the telephone was on the person, and only ended when the juveniles picked it up from the ground.”

The phone became physically separated from the victim’s person not due to the victim’s voluntary choice but due to the juveniles’ wrongful act, which prompted the victim to flee, Chin said.

The justice noted that a general intent to steal when the assault began was sufficient to uphold guilt for theft of the phone.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn Mickle Werdegar and Carol A. Corrigan concurred in the opinion.

Dissenting, Justice Carlos R. Moreno contended his colleagues failed to apply the phrase “taken from the person of another” according to its plain meaning, and instead expanded its scope “beyond its commonsense meaning as well as its historical bounds.”

“If property is physically connected to the victim’s person when the thief takes it, it is theft from the person,” he wrote. “If not, it is not.”

He added that it made no difference whether Mario accidentally dropped the phone while fleeing as opposed to voluntarily putting it on the ground before the defendant stole it. The critical issue, Moreno said, was whether the property was taken from the ground or from the victim’s person.

“The juvenile in the present case did not reach into the victim’s pocket,” the justice observed. “Rather, he simply caused the victim to run, which in turn presumably caused the cell phone to fall from the victim’s pocket to the ground where the juvenile’s accomplice could pick it up.”

The jurist also noted that Sec. 487(c) was intended to protect individuals and property against pickpockets, purse snatchers and other such thieves who commit their crimes by “stealth or fraud.”

“Once the property no longer is attached to the person of the victim, the theft does not entail the type of increased danger to the person or life of the victim that this statute was designed to address,” he said. 

The case was argued in the high court by Irvine’s Patricia Ihara, the court-appointed lawyer for the accused, and Deputy Attorney General Daniel Chang.

The case is In re Jesus O., 07 S.O.S. 1135.


Copyright 2007, Metropolitan News Company