2 California Criminal Law (4th), Crimes Against Property

Transcription

1 2 California Criminal Law (4th), Crimes Against Property I. THEFT A. In General. 1. [ 1] Statutory Consolidation of Offenses. 2. [ 2] Procedural Distinctions Abolished. 3. [ 3] Substantive Distinctions Remain. B. Grand and Petty Theft. 1. Grand Theft. (a) [ 4] Value of Property. (b) [ 5] Specified Kinds of Property. (c) Taking From the Person. (1) [ 6] In General. (2) [ 7] Meaning of "From the Person." (d) [ 8] Punishment. 2. [ 9] Petty Theft. 3. Determining Value. (a) [ 10] In General. (b) [ 11] Instrument or Services. 4. Single and Multiple Offenses. (a) [ 12] Nature of Problem and Test. (b) [ 13] Illustrations. C. Larceny. 1. Taking Without Consent. (a) [ 14] Trespassory Taking. (b) [ 15] Larceny by Trick. 2. [ 16] Carrying Away. 3. [ 17] Personal Property. 4. Victim's Ownership or Possession. (a) Possession of Owner. (1) [ 18] In General. (2) [ 19] Partners and Coowners. (3) [ 20] Lost Property. (b) [ 21] Possession of Interest of Others. (c) [ 22] Illegal Property. 5. Intent To Steal. (a) [ 23] Necessity of Intent. (b) Requisites of Intent. (1) [ 24] Concurrence of Taking and Intent. (2) [ 25] Intent To Keep Permanently. (3) [ 26] Circumstantial Evidence. (c) [ 27] Mistake and Claim of Right. (d) [ 28] Spurious Defenses. D. Embezzlement. 1. [ 29] Nature of Crime. 2. [ 30] Subjects of Embezzlement.

2 3. Elements of Embezzlement. (a) Relationship of Trust and Confidence. (1) [ 31] Nature of Requirement. (2) [ 32] Trustees. (3) [ 33] Other Persons. (b) Appropriation With Fraudulent Intent. (1) [ 34] Nature of Requirement. (2) [ 35] Proof of Intent. 4. Defenses. (a) Claim of Title. (1) [ 36] Nature and Scope of Defense. (2) [ 37] Partners or Spouses. (3) [ 38] Limitations on Defense. (b) [ 39] Claim of Authority. (c) Spurious Defenses. (1) [ 40] No Demand. (2) [ 41] Intent To Restore and Restoration. (3) [ 42] Other Untenable Defenses. 5. [ 43] Embezzlement by Public Officer or Employee. E. Misappropriation of Public funds. 1. [ 44] Statutory Provisions. 2. [ 45] Embezzlement Distinguished. F. Diversion of Construction Funds. 1. [ 46] Nature of Offense. 2. [ 47] Diversion of Funds and Harm. G. False Pretenses. 1. In General. (a) [ 48] Nature of Crime. (b) [ 49] Related Offenses. (c) [ 50] Subjects of False Pretenses. (d) [ 51] Necessity of Writing or Corroboration. 2. [ 52] Intent To Defraud. 3. False Representation. (a) Misrepresentation of Fact. (1) [ 53] In General. (2) [ 54] Illustrations. (b) [ 55] Misrepresentation of Opinion. (c) Misrepresentation of Intention. (1) [ 56] Future Events or Conduct. (2) [ 57] Former Rule: False Promise Is Not Basis for Conviction. (3) [ 58] Current Rule: False Promise Is Basis for Conviction. 4. Reliance on Representation (Causation). (a) [ 59] Necessity of Actual Reliance. (b) [ 60] Imputed Knowledge of Agent of Officer. (c) [ 61] Indirect Causation.

3 (d) [ 62] Interval Between Representation and Effect. (e) [ 63] Gullible Victim. 5. Victim Defrauded. (a) [ 64] In General. (b) [ 65] Defendant Not Benefited. (c) [ 66] Title Retained by Victim. (d) [ 67] Value Received by Victim. (e) [ 68] Property Recovered by Victim. (f) [ 69] Illegality or Victim's Fraud. 6. Larceny Distinguished. (a) [ 70] Intention To Part With Title. (b) [ 71] Illustrations. II. RECEIVING STOLEN PROPERTY A. [ 72] Nature of Crime. B. [ 73] Statute Is Constitutional. C. Elements of Offense. 1. [ 74] Property Stolen or Extorted. 2. Receiving, Concealing, Selling, or Withholding. (a) [ 75] Receiving. (b) [ 76] Concealing, Selling, or Withholding. (c) Original Crime Is Distinct. (1) [ 77] Basic Principle. (2) [ 78] Dual Conviction. (3) [ 79] Thief as Accomplice of Receiver. (4) [ 80] Concealing and Withholding After Theft. 3. Knowledge. (a) [ 81] Nature of Requirement. (b) [ 82] Proof by Circumstantial Evidence. (c) [ 83] Distinction for Insubstantial Evidence. (d) [ 84] Particular Vendors and Dealers. III. ROBBERY A. In General. 1. [ 85] Nature of Crime. 2. [ 86] Degrees of Robbery. 3. [ 87] Punishment. B. Taking. 1. Possession of Another. (a) [ 88] Physical Custody and Control. (b) Constructive Possession. (1) [ 89] Special Relationship. (2) [ 90] Representative Capacity. (3) [ 91] Employees. 2. [ 92] From Person. 3. From Immediate Presence. (a) [ 93] Broad Interpretation. (b) [ 94] Restricted Interpretation.

4 (c) [ 95] Element May Be Satisfied During Asportation. 4. [ 96] Asportation. C. Force or Fear. 1. [ 97] In General. 2. [ 98] Escape With Loot. 3. [ 99] Force. 4. Fear. (a) [ 100] Nature of Fear. (b) [ 101] Illustrations. D. Intent To Steal. 1. [ 102] Intent To Permanently Deprive. 2. [ 103] Right to Possession or Ownership. 3. [ 104] Accident, Inadvertence, and After Acquired Intent. 4. [ 105] Money Lost in Gambling. 5. [ 106] Collection of Debt. IV. VEHICLE OFFENSES A. Unlawful Taking of Vehicle. 1. [ 107] Nature of Crime. 2. [ 108] Distinctions. 3. [ 109] What Constitutes Driving or Taking Vehicle. 4. [ 110] Lack of Consent by Owner. 5. [ 111] Specific Intent. 6. [ 112] Relationship to Receiving Stolen Property. 7. [ 113] Related Offenses. B. Carjacking. 1. [ 114] In General. 2. [ 115] From Person or Immediate Presence. 3. [ 116] Against Victim's Will. 4. [ 117] Asportation. 5. [ 118] Robbery Distinguished. V. EXTORTION A. In General. 1. [ 119] Nature of Crime. 2. [ 120] Elements of Extortion. 3. [ 121] Causation. B. Threats Inducing Fear. 1. [ 122] To Injure Person or Property. 2. [ 123] To Accuse of Crime. 3. [ 124] To Defame or Expose. 4. [ 124A] (New) To Report Immigration Status. C. Special Forms of Crime or Attempt. 1. [ 125] Sending Threatening Letter. 2. [ 126] Obtaining Signature by Threat. 3. [ 127] Other Offenses. VI. BURGLARY A. [ 128] Nature of Crime.

5 B. Degrees of Burglary. 1. First Degree. (a) [ 129] In General. (b) Inhabited Dwelling. (1) [ 130] In General. (2) [ 131] Carport. (3) [ 132] Other Illustrations. 2. [ 133] Second Degree. 3. [ 134] Burglary With Torch or Explosives. C. Elements of Burglary. 1. Places Subject to Burglary. (a) Structures. (1) [ 135] In General. (2) [ 136] Buildings. (3) [ 137] Rooms. (b) [ 138] Locked Vehicles. (c) [ 139] Other Vehicles, Vessels, and Aircraft. 2. Entry. (a) Nature of Requirement. (1) [ 140] Method of Entry. (2) [ 141] Entry To Commit Crime in Another Place. (3) [ 142] Multiple Entries. (b) Consent. (1) [ 143] Trespassory Entry Is Not Necessary. (2) [ 144] Consent by One Possessor for Purpose of Injuring Another Possessor. (3) [ 145] Consent As Defense. (4) [ 146] Entry of Public During Business Hours. 3. Intent to Commit Theft or Felony. (a) Intent of Perpetrator at Time of Entry. (1) [ 147] In General. (2) [ 148] Failure of Intended Purpose. (3) [ 149] Intoxication as Defense. (b) [ 150] Intent of Aider and Abettor. (c) [ 151] Intent To Commit Theft. (d) [ 152] Intent To Commit Felony. (e) Circumstantial Evidence To Prove Intent. (1) [ 153] In General. (2) [ 154] Acts Before Entry. (3) [ 155] Method of Entry. (4) [ 156] Conduct on Premises and After Leaving. D. [ 157] Proof of Possession of Stolen Property. VII. BURGLARIOUS AND LARCENOUS INSTRUMENTS A. Burglary Tools. 1. [ 158] Possession and Sale of Specified Instruments or Tools. 2. [ 159] Meaning of "Other Instrument or Tool."

6 3. [ 160] Requirement of Intent. 4. [ 161] Making, Altering, or Repairing Key or Specified Instruments. B. [ 162] Motor Vehicle Master Keys and Alarm Devices. VIII. LOOTING A. [ 163] Nature of Crime. B. [ 164] Punishment. IX. FORGERY AND RELATED CRIMES A. Forgery. 1. [ 165] Basic Crime. 2. Writing or Other Subject. (a) [ 166] Listed Writings. (b) [ 167] Unlisted Writings. (c) [ 168] Writing Must Have Legal Significance. 3. False Making or Alteration. (a) False Signature. (1) [ 169] In General. (2) [ 170] Lack of Authority To Sign. (3) [ 171] Proof. (4) [ 172] Fictitious Name. (b) Genuine Signature: Fraud in Inception. (1) [ 173] Fraud in Inception as Forgery. (2) [ 174] Distinction: Signature Fraudulently Used. (c) [ 175] Alteration. 4. Intent To Defraud. (a) [ 176] Requirement and Proof. (b) [ 177] Distinctions and Spurious Defenses. B. Uttering False Instrument. 1. [ 178] In General. 2. [ 179] Attempt to Pass. C. Issuing Check To Defraud. 1. [ 180] Nature of Crime and Punishment. 2. [ 181] False Pretenses Distinguished. 3. Elements of Crime. (a) [ 182] Drawing or Delivering Check. (b) [ 183] Insufficient Funds or Credit. (c) [ 184] Knowledge. (d) Intent To Defraud. (1) [ 185] In General. (2) [ 186] Disclosure and Promise To Deposit Funds. (3) [ 187] Expectation of Funds. D. Official Document Offenses. 1. Offering Instrument for Record. (a) [ 188] Nature of Crime. (b) [ 189] What Are Instruments. 2. [ 190] Altering Public Records. 3. [ 191] False Citizenship or Residency.

7 E. Other Offenses. 1. [ 192] Possession of Forged Writing. 2. [ 193] Counterfeiting. 3. [ 194] False Pretenses. 4. [ 195] Fictitious Check or Note. 5. [ 196] Crimes Involving Forged Instruments. 6. Special Types of Forgery. (a) [ 197] Trademarks. (b) [ 198] Communications and Transportation. (c) [ 199 ] Motor Vehicle Items. (d) [ 200] Miscellaneous Offenses. X. FALSE PERSONATION, CHEATS, AND BUSINESS FRAUDS A. [ 201] In General. B. Impersonation. 1. [ 202] General Statute. 2. [ 203] Marriage and Birth of Child. 3. [ 204] Notary Public. 4. Public Officers. (a) [ 205] General Statute. (b) [ 206] Peace Officers. (c) [ 207] Fire Department Personnel. (d) [ 208] State or Municipal Officer or Employee. 5. [ 209] Military, Veterans, and Societies. 6. [ 210] Other Impersonation Statutes. C. [ 211] Concealment of Personal Identity. D. Personal Information Trafficking. 1. [ 212] In General. 2. [ 213] Offenses. 3. [ 214] Procedures For Victims of Identity Theft. E. Frauds Involving Credit and Other Access Cards. 1. [ 215] In General. 2. [ 216] Theft. 3. [ 217] Forgery, Alteration, or Counterfeiting. 4. [ 218] Use of Card To Obtain Items of Value. 5. [ 219] Offenses of Retailer. 6. [ 220] Publication of Card Number or Code. 7. [ 221] Possession or Use of Scanning and Reencoding Devices. F. Insurance Fraud. 1. [ 222] Fraudulent Claims. 2. [ 223] Fraudulent Statements. 3. [ 224] Health Care Benefits. 4. [ 225] Workers'Compensation Claims. 5. [ 226] Destruction of Insured Property. 6. [ 227] Procuring, Accepting, or Referring Business. G. Computer Crimes. 1. [ 228] Statutory Framework.

8 2. [ 229] Offenses and Exceptions. 3. [ 230] Punishment, Conditions, and Forfeiture. H. Offenses Involving Telecommunication Services. 1. [ 231] In General. 2. [ 232] Specific Means of Avoiding Charges. 3. [ 233] Use of Specific Equipment To Avoid Charges. 4. [ 234] Use of Credit Card Code. 5. [ 235] Fraud Involving Telecommunication Device. I. False Advertising. 1. [ 236] Statutory Framework. 2. [ 237] Business and Professional Licenses and Employment. 3. [ 238] Real Estate, Environment, and Energy. 4. [ 239] Contests and Prizes. 5. [ 240] Telemarketing and Electronic Ordering of Goods. 6. [ 241] Automobile and Automobile Products. 7. [ 242] Miscellaneous Topics. J. Offenses Involving Representation of Goods. 1. [ 243] False Labeling or Designation of Goods. 2. [ 244] Removal of Identifying Marks or Labels. K. False Weights and Measures. 1. [ 245] In General. 2. [ 246] Weighing and Measuring Devices. 3. [ 247] Packaging and Labeling. L. Record Piracy. 1. [ 248] Unauthorized Transfer of Sound Recordings. 2. [ 249] Unauthorized Recording of Live Performance. 3. [ 250] Unlawful Sale or Transport of Recording of Live Performance. 4. [ 251] Failure To Disclose Origin of Sound Recording. M. Other Offenses. 1. [ 252] Electronic Dissemination of Commercial Work. 2. [ 253] Fraudulent Property Transactions. 3. [ 254] Vendor's Excessive Encumbrance or Misappropriation. 4. [ 255] Wrongful Acquisition of Trade Secret. 4A. [ 255A] (New) Wrongful Disclosure of Trade Secret. 5. [ 256] Frauds Involving Commercial Bailments. 6. [ 257] Misuse of Odometer. 7. [ 258] Misuse of Degree or Diploma. 8. [ 259] Offenses Involving Identification Documents. 9. [ 260] Improper Commercial Activities. 10. [ 261] Rent Skimming. 11. [ 262] Prohibited Claims. 12. [ 263] Defrauding Hotel, Restaurant, Etc. 13. [ 264] Defrauding Service Company. 14. [ 265] Miscellaneous Frauds. XI. ARSON AND RELATED CRIMES A. [ 266] Nature of Crimes.

9 B. Statutory Coverage. 1. [ 267] Definitions. 2. Offenses and Punishment. (a) [ 268] Arson. (b) [ 269] Aggravated Arson. (c) [ 270] Unlawfully Causing Fire. (d) [ 271] Possession of Flammable Materials or Incendiary Device. (e) [ 272] Attempt. 3. [ 273] Additional Punishment and Conditions. C. Elements. 1. [ 274] Burning. 2. [ 275] Incendiary Origin. 3. [ 276] Mental State. XII. MALICIOUS MISCHIEF A. [ 277] Nature of Crimes. B. Vandalism. 1. [ 278] In General. 2. Implements of Vandalism. (a) [ 279] Etching Cream and Aerosol Paint. (b) [ 280] Implements of Cutting and Marking. 3. Punishment. (a) [ 281] In General. (b) [ 282] Vandalism to Religious Institution or Cemetery. (c) [ 283] Use of Noxious or Caustic Substance. (d) [ 284] Vandalism to Highway or Freeway. (e) [ 285] Additional Conditions. 4. [ 286] Graffiti. C. Trespass and Injury to Property. 1. [ 287] In General. 2. Entry Without Destruction or Taking. (a) [ 288] The Trespass Statute. (b) [ 289] Public Property Offenses. (c) [ 290] Posted Industrial Property. (d) [ 291] Railroad and Rail Transit Property. (e) [ 292] Entry To Carry Out Threat. (f) [ 293] Commercial Business or Public Agency. (g) [ 294] Noncommercial Dwelling. (h) [ 295] Real Property of Academic Researcher. (i) [ 296] Miscellaneous Statutes. (j) [ 297] Labor Activity Exception. 3. Injury, Destruction, or Taking. (a) [ 298] Statutory Framework. (b) [ 299] Acts Directed at Vehicles. (c) [ 300] Acts Directed at Aircraft. (d) [ 301] Acts Involving Roads, Highways, or Traffic Devices. (e) Public Utilities.

10 (1) [ 302] Railroad Property and Equipment. (2) [ 303] Public Transportation Vehicles or Facilities. (3) [ 304] Telecommunication Lines and Equipment. (4) [ 305] Miscellaneous. (f) [ 306] Cable System Devices and Connections. (g) [ 307] Other Property. D. Offenses Involving Vehicles. 1. [ 308] Tampering or Injuring. 2. [ 309] Motor Vehicle Chop Shops. E. Crimes Against Animals. 1. [ 310] In General. 2. [ 311] Torture, Killing, and Poisoning. 3. [ 312] Neglect. 4. Fighting. (a) [ 313] Dogfighting. (b) [ 314] Other Animals. 5. [ 315] Commercial Use of Rabbits, Chicks, or Other Fowl. 6. [ 316] Endangered Species. 7. [ 317] Miscellaneous Offenses.