Property Crimes, Burglary, Etc.

Question 1

What is the common law definition for theft(or larceny)?

Answer 1

Defined as the trespassory caption and asportation of the personal property of another with the intent to steal

*Even though there is a consolidation, this will always be the theft elements

Question 2

What is trespassory?

Answer 2

Without the consent of the owner

Question 3

What is caption?

Answer 3

To control

Question 4

What is asportation?

Answer 4

Movement, however slight

Question 5

What is larceny?

Answer 5

the taking and carrying away of someone else’s personal property, by trespass, with the intent to permanently deprive the owner of possession

Question 6

What is trespass?

Answer 6

Trespass has multiple meanings:
1. A person who enters another’s land without consent
2. To take another person’s personal property without consent

Question 7

What is possession?

Answer 7

Possession has multiple meanings:
1. Actual control of an item of personal property
2. A person can have constructive possession of property (your car is parked two blocks away, you have actual possession of the keys but you have constructive possession of the car

Question 8

Essentially, what is theft?

Answer 8

It’s an offense against possession. A person who has possession of personal property can’t steal it but a person who has mere custody can steal it

Question 9

What is the common law definition for embezzlement?

Answer 9

The wrongful conversion (misappropriation) of the personal property of another by one in lawful possession.

*Even though there is a consolidation, this will always be the embezzlement elements

Question 10

What is the modern embezzlement definition?

Answer 10

“Every person who shall fraudulently appropriate property which has been entrusted to him.” (specific intent crime)
1. Victim intended to give you lawful possession but you fraudulently used it

Question 11

What is the common law definition for false pretenses?

Answer 11

Defined as a false representation of a material present or past fact that causes the victim to pass title of the victim’s real or personal property to defendant (specific intent crime)
1. Defendant knows the representation to be false
2. Intends to defraud victim
3. Victim relies on the false representation

*Even though there is a consolidation, this will always be the false pretenses elements

Question 12

What is the modern law for false pretenses?

Answer 12

“Every person who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor, or real or personal property.”

Question 13

What are the distinctions between false pretenses and theft?

Answer 13

1. With theft, the owner does not intend to part with ownership of property
2. With false pretenses, the owner (victim) relied on the false statements of the offender and intends to pass ownership or title of the property to the offender

Question 14

What are the differences between the three theft crimes (theft, false pretenses, and embezzlement)?

Answer 14

The criminal v. lawful means of obtaining property.
1. Theft = criminal
2. False pretenses = criminal
3. Embezzlement = lawful

Question 15

What is larceny by trick or deception (theft)?

Answer 15

An offender who intends to “steal” a person’s personal property lies to the victim in order to gain control over the victim’s property—the offender then makes off with the property

*Larceny by trick is not a separate crime; it is a type of larceny/theft

Question 16

What is the distinction between larceny by trick and false pretenses?

Answer 16

Both cases, offender lies to victim and victim parts with property based on false representations of thief
1. False pretenses: Victim intended ownership/title to change hands
2. Larceny by trick: victim intended to retain ownership

Question 17

California PC § 484(a) Consolidation of all Theft Crimes: Theft(Larceny), Embezzlement, and False Pretenses

Answer 17

“Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor, or real or personal property, is guilty of theft.”

*Regardless of consolidation, use the common law elements to meet requirements

Question 18

Modernly, what is theft(larceny)?

Answer 18

“Every person who shall feloniously steal the personal property of another.” (Specific intent crime

Question 19

What is intent to steal?

Answer 19

is the intent to permanently deprive the owner of possession or without a good faith claim of right

Question 20

What is the intent to permanently deprive?

Answer 20

Intent to deprive the owner of the main value of property

Question 21

What is the difference between grand theft and petty theft?

Answer 21

Grand theft = more than $950 stolen
Petty theft = less than $950 stolen

Question 22

What is shoplifting?

Answer 22

Entering a commercial establishment with intent to commit larceny while business is open where property stolen does not exceed $950

Question 23

What three circumstances will suffice and show defendant had intent to deprive?

Answer 23

California’s intent to permanently deprive requirement for theft is flexible. The three circumstances are:
1. “sale”: taking property with intent to sell it back to owner
2. “reward”: taking property with intent to claim a reward for “finding” it
3. “refund”: taking property from a store display and taking it to the return counter to get a refund

Question 24

What is the claim of right defense?

Answer 24

A good faith belief by the defendant that the property taken is his own is a complete defense to larceny/robbery.

Question 25

What is the common law definition of robbery?

Answer 25

The trespassory taking and carrying away of the person property of another with intent to steal effectuated by force or threat of force

Question 26

What is the modern robbery definition?

Answer 26

“The felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force OR fear.”

Felonious taking= trespassory taking

Question 27

What is fear for robbery purposes?

Answer 27

When there is sufficient fear to cause the victim to comply with the unlawful demand for his property
1. No direct proof is necessary; fear can be inferred and the victim need not explicitly testify that she/he was afraid
2. Requisite fear does not need to be a result of an express threat or use of weapon; Resistance by victim is not needed
4. Intimidation equates with fear; an unlawful demand can convey an implied threat of harm for failure to comply

Question 28

What is force?

Answer 28

Typical robbery includes the robber using force and/or threats to coerce the victim to part with the property—this use of force is clear

Question 29

What is robbery?

Answer 29

Larceny with the aggravating circumstances that the property is taken from the person or presence of another
(Theft plus assault)

Question 30

What are the robbery requirements?

Answer 30

1. Requires the taking of property directly from the victim, or from the the victim’s immediate presence
2. Even if property is taken peacefully, use of force OR fear to carry it away is needed

Question 31

What are the degrees for robbery?

Answer 31

First degree: includes robbery of the driver or passenger of a bus, cable car, light rail, or car for hire; of a person using an ATM; and robbery
Second degree: all other robberies

Question 32

When does robbery end?

Answer 32

Robbery is a continuing offense—begins from the time of the original taking until the robber reaches a place of relative safety

Question 33

What is receipt of stolen property?

Answer 33

“Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained.” (specific intent crime)
1. This requires the person to intend to knowingly receive stolen property specifically

Question 34

What is forgery?

Answer 34

“Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery.” (specific intent crime) This applies to forging handwriting as well

Question 35

What is the common law burglary definition?

Answer 35

Burglary was the breaking and entering (actus reus) of the dwelling house of another at night with the intent to commit a felony therein (mens rea). There had to be a breaking; mere trespassing would not suffice; intent to commit misdemeanor would not suffice either
1. entry through a partially or completely open door or window was not breaking
2. Only applied to dwellings—not stores
3. Only nighttime entries constituted burglary

Question 36

What is the modern definition of burglary?

Answer 36

So every person who enters a building with the intent to commit a misdemeanor or felony is guilty

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, vehicle when the doors are locked, aircraft, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”

Question 37

What are the common law and modern differences of burglary?

Answer 37

Common law:
1. entry through a partially or completely open door or window was not breaking
2. Only applied to dwellings—not stores
3. Only nighttime entries constituted burglary
Modernly: Many states including California eliminated the breaking element
1. As for “entry,” some part of the defendant’s body must enter the building
2. Today, any structure will do
3. Nightime requirement eliminated

Question 38

What does inhabited mean?

Answer 38

currently being used for dwelling purposes, whether occupied or not

Question 39

What is using instruments to gain access entail and mean?

Answer 39

Burglary may be committed when using an instrument to enter a building—either used to effect entry or accomplish intended larceny or felony as well

*once tool enters building, you have committed a burglary

Question 40

What are the two degrees for burglary?

Answer 40

First degree: every burglary of an inhabited dwelling house, vessel, floating home, trailer coach, or the inhabited portion of any other building.”
Second degree: all other kinds of buildings—uninhabited

*inhabited buildings do not need to be occupied when it is burglarized

Question 41

What are burglar tools?

Answer 41

Anything used to gain entry into a home and requires showing that the defendant intended to use the instrument or tool possessed to break OR effectuate physical entry into a structure in order to commit theft or a felony within the structure

Question 42

What is the common law definition of arson?

Answer 42

Arson was the malicious burning of the dwelling house of another

Question 43

What is the modern definition of arson?

Answer 43

“when [a person] willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” (general intent crime)

*Arson of an inhabited building is punished more severely

Question 44

What are the elements for arson?

Answer 44

1. Burning is an element
2. burned structure does not have to be destroyed or seriously damaged
3. The fire can impact any part of the building
4. with wood, burning occurs when fibers are—as it relates to wood

Question 45

What is extortion?

Answer 45

The obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right

Question 46

What distinguishes extortion from theft?

Answer 46

1. With extortion, the victim consents under threat to transfer property
2. With theft, there is not a threat