People v. Davis
19 Cal.4th 301, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (1998)
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Rule of Law:
The intent to permanently deprive an owner of property, as required for theft by larceny, is established when a person takes an item from a store with the intent to return it for a refund. This conditional intent to return the property only upon receiving payment constitutes an assertion of ownership and creates a substantial risk of permanent loss, satisfying the 'intent to steal' element.
Facts:
- Defendant entered a Mervyn's department store carrying a Mervyn's shopping bag.
- While under surveillance by security agent Carol German, defendant went to the men's department and took a shirt from a display hanger.
- He carried the shirt to a sales counter in the women's department on the other side of the store.
- Defendant told cashier Heather Smith that he wanted to 'return' the shirt, falsely claiming he had bought it for his father as a gift and did not have a receipt.
- German, the security agent, telephoned Smith and instructed her to issue a credit voucher to the defendant.
- Smith prepared a credit voucher, which the defendant signed using a false name.
- German detained the defendant as he walked away from the counter with the voucher.
Procedural Posture:
- The defendant was charged in a trial court with petty theft with a prior theft-related conviction.
- After the prosecution presented its case, the defendant moved for a judgment of acquittal, arguing the evidence showed at most an attempted theft.
- The trial court denied the motion.
- A jury found the defendant guilty of petty theft, and the trial court found the prior conviction to be true.
- The defendant was sentenced to state prison.
- The defendant (appellant) appealed the conviction to the California Court of Appeal.
- The Court of Appeal (intermediate appellate court) affirmed the judgment, holding the defendant was properly convicted of theft by larceny.
- The California Supreme Court (highest court) granted the defendant's petition for review.
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Issue:
Does a person commit theft by larceny when they take merchandise from a store display with the intent to return it for a refund, rather than intending to permanently keep the specific item taken?
Opinions:
Majority - Mosk, J.
Yes, a person commits theft by larceny under these circumstances. The defendant's intent to claim ownership of the shirt and return it to the store only on the condition that the store pay him a 'refund' constitutes an intent to permanently deprive the store of the shirt within the meaning of the law of larceny. A store's implied consent for customers to carry merchandise is limited to those with an intent to purchase; taking an item with the intent to steal it is a trespassory taking from the outset. The court reasoned that the intent to return property conditioned upon receiving payment is legally equivalent to an intent to permanently deprive because it is an assertion of ownership, makes the return contingent on payment, and creates a substantial risk of permanent loss if the fraudulent transaction fails.
Analysis:
This case clarifies and arguably expands the 'intent to permanently deprive' element of common law larceny in California. By holding that a conditional intent to return property is sufficient for larceny, the court treats fraudulent refund schemes not as mere attempts but as completed thefts the moment the property is taken with larcenous intent. This decision solidifies a broader interpretation of 'animus furandi' (intent to steal), aligning it with cases involving ransoms or holding property for a reward. The ruling provides a stronger legal basis for prosecuting retail fraud and diminishes the defendant's ability to argue they lacked intent to steal the specific merchandise involved.
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