Superior County Los Angeles Ct. No. MA046168 Judge Bernie C. LaForteza
Tracy A. Rogers, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Scott A. Tayrle, Lawrence M. Daniels and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Tracy A. Rogers, Michael C. Keller Deputy Attorney General
Defendant used re-encoded payment cards to buy gift cards at a department store. After the store’s security guards were alerted to the scam, they asked defendant to show them the gift card receipts and the payment cards used. Defendant did so. When he was told that the numbers on the cards did not match those on the receipts, he began walking away, ignored the security guards’ requests to stop, and then shoved one of the guards. After a brief struggle, defendant was handcuffed. Defendant was later charged with and convicted of several offenses, including, as relevant here, robbery and theft. He here challenges his robbery convictions.
An element of robbery is the “felonious taking of personal property in the possession of another....” (Pen. Code, § 211, italics added; all further statutory references are to the Penal Code.) At issue is the type of theft that constitutes a “felonious taking.” Is it only theft by larceny, as defendant argues? Or can it also be theft by false pretenses (the type of theft defendant committed), as the Attorney General contends? According to the Court of Appeal, which upheld defendant’s robbery convictions, theft by false pretenses can satisfy the “felonious taking” requirement of robbery. We granted defendant’s petition for review, and we now reverse the Court of Appeal’s judgment.
On July 4, 2009, defendant Demetrius Lamont Williams entered a Walmart department store in Palmdale. Using either a MasterCard or a Visa payment card, which was re-encoded with a third party’s credit card information, defendant bought a $200 Walmart gift card from a recently hired cashier, who was filling in for a cashier on a break. Defendant then tried to buy three more gift cards from the same cashier. At that point, the regular cashier came back and, after learning of the previous transaction, told defendant of Walmart’s policy prohibiting the use of credit cards for purchases of gift cards. Defendant was permitted to keep the $200 gift card he had initially bought.
Defendant then went to a different cash register and again presented a re-encoded payment card to buy another $200 gift card. The transaction was observed by a Walmart security guard who, accompanied by another guard, asked defendant for the receipt and payment card used. Defendant complied. When told that the payment card’s last four digits did not match those on the receipt, defendant produced two other re-encoded payment cards, but their numbers did not match those on the receipt either.
Defendant began walking toward the exit, followed by the two security guards. When defendant was told to stop, he produced yet another re-encoded payment card, but this card’s last four digits also did not match those on the receipt. As defendant continued walking toward the exit, he pushed one of the guards, dropped some receipts, and started running away. After a brief struggle inside the store, the guards wrestled defendant to the ground and handcuffed him. Recovered from defendant’s possession were four payment cards issued by MasterCard and Visa. Also retrieved from defendant were several gift cards from Walmart and elsewhere.
Defendant was charged with four counts of second degree robbery (§ 211), one count of second degree burglary (§ 459), one count of fraudulent use of an access card (§ 484g), one count of grand theft (§ 487, subd. (a)), and three counts of forgery (§ 484i, subd. (b)), a total of 10 counts. The information also alleged defendant had one prior serious or violent felony conviction (robbery) within the meaning of the “Three Strikes” law (§ 667). Regarding the grand theft count, the court instructed the jury on grand theft by false pretenses. The jury found defendant guilty as charged, and the trial court sentenced him to a total prison term of 23 years eight months. The Court of Appeal reversed defendant’s forgery convictions for insufficient evidence and modified the judgment to stay imposition of the burglary sentence under section 654, which prohibits punishment for more than one crime arising from a single indivisible course of conduct (see People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208). In all other respects, the Court of Appeal affirmed the trial court’s judgment, including defendant’s robbery convictions.
As he did in the Court of Appeal, defendant here argues his robbery convictions should be reversed because robbery requires theft by larceny, whereas the theft he committed was by false pretenses. We agree.
Robbery is “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.” (§ 211, italics added.) The term “felonious taking” originated in the common law and was later adopted in California’s robbery statute. (People v. Tufunga (1999) 21 Cal.4th 935, 947 (Tufunga).) At issue here is the meaning of “felonious taking.” Can that element of robbery be satisfied only by the crime of theft by larceny, as defendant argues? Or can it also be committed through theft by false pretenses, as the Attorney General contends?
To help us ascertain the meaning that the Legislature intended when it used the words “felonious taking” in California’s robbery statute (§ 211), we need to examine that statute’s common law roots. We do so below. Part A discusses the common law origins and development of the related crime of larceny. Part B discusses the British Parliament’s enactment in the 18th century of the two statutory offenses of theft by false pretenses and embezzlement,  both of which were later adopted in the early criminal laws of the American states. Part C discusses the elements of robbery, larceny, and theft by false pretenses, and their application to this case.
A. Crime of Larceny
California statutorily defines the crime of theft by larceny as the felonious stealing, taking, carrying, leading, or driving away of the personal property of another. (§ 484, subd. (a).) That statutory definition reflects its English common law roots. (People v. Davis (1998) 19 Cal.4th 301, 304, fn. 1 (Davis).)
Unlike statutory law, whose authority rests upon an express declaration by a legislative body, the common law “consists of those principles and forms which grow out of the customs and habits of a people, ” enshrined in law by virtue of judicial decisions. (1 Burdick, Law of Crime (1946) § 5, pp. 16-17 (Burdick).) Much of the law developed in English courts was later applied in England’s American colonies and then, after independence, in this nation’s states. (See id. at pp. 18, 33-47.) As used in this opinion, the term “common law” denotes a “body of judge-made law... developed originally in England.” (Garner, A Dictionary of Modern Legal Usage (2d ed. 1995) p. 177.) And, as used here, the term “common law crime” means a “crime that [was] punishable under the common law, rather than by force of statute.” (Garner, Black’s Law Dictionary (9th ed. 2009) p. 427.)
The common law defined larceny as the taking and carrying away of someone else’s personal property, by trespass, with the intent to permanently deprive the owner of possession. (See 2 Burdick, supra, § 496i, p. 261, citing 4 Blackstone, Commentaries 229.) Larceny was considered to be an offense less serious than robbery because of robbery’s additional requirement of personal violence against, or intimidation of, the victim. (Perkins & Boyce, Criminal Law (3d ed. 1982) Offenses Against Property, p. 344 (Perkins).) Not that the distinction made any difference to the accused: Under the common law, robbery and larceny were felonies, and all felonies were punishable by death. (Id. at p. 290.)
In 1275, the English Parliament enacted a statutory exception to punishment of death for all felonies. (2 Burdick, supra, § 554, pp. 328-329, citing Statute of Westminster I, ch. 15 (1275).) The statute created a sentencing distinction between “grand” and “petit” larceny, making grand larceny a more serious offense than petit larceny, involving property valued at greater than 12 pence (the approximate price of a sheep). (People v. Ortega (1998) 19 Cal.4th 686, 694 (Ortega); see also 2 Burdick, supra, § 554, pp. 328-329; Perkins, supra, at p. 290.) Under the 1275 statute, grand larceny remained punishable by death; but petit larceny became punishable only by imprisonment, whipping, or forfeiture of goods. (See Ortega, supra, at p. 694, citing 3 Wharton, Criminal Law (15th ed. 1995) § 344, p. 361; Perkins, supra, at p. 290.) Larceny remained a felony, however, irrespective of whether it was grand or petit. (Ortega, supra, at p. 694.) Therefore, larceny was, in essence, a felonious taking. (See 2 Burdick, supra, § 496i, p. 261, citing 4 Blackstone, Commentaries 229, 232 [Blackstone’s definition of common law larceny, circa 1765].)
Until the latter part of the 18th century, death was the punishment for all theft offenses except petty larceny. (3 LaFave, Substantive Criminal Law (2d ed. 2003) § 19.2, pp. 60-61 (LaFave), citing Model Pen. Code, com. to § 223.1, pp. 128-129.) By that time, English society and its judiciary had become troubled by that excessively harsh punishment for theft crimes. (Perkins, supra, at p. 290.) This concern led the English courts to limit the scope of larceny. (Id. at pp. 290-291; 3 Torcia, Wharton’s Criminal Law (15th ed. 1995) Larceny, § 342, p. 349.) For instance, it was held not to be larceny — and not a crime at all — if someone in lawful possession of another’s property misappropriated it for personal use (the later offense of embezzlement), or if someone acquired title to another’s property by fraud (the later offense of false pretenses). (See 3 LaFave, supra, at p. 57; see also 2 Burdick, § 562, pp. 338-339, § 621, p. 456.) These limitations to the law of larceny made sense in light of that crime’s original purpose of preventing breaches of the peace; because embezzlement and false pretenses lacked larceny’s requirement of a “trespass in the taking, ” they were viewed as less likely to result in violence. (3 LaFave, supra, at p. 57.)
Although common law larceny was in some ways narrowed to limit punishment by death, the scope of larceny was in other ways broadened to provide greater protection of private property. (See 3 LaFave, supra, at p. 57.) For instance, in 1799 an English court decision introduced the concept of “larceny by trick.” (Rex v. Pear (1779) 168 Eng.Rep. 208; Note, Larceny, Embezzlement and Obtaining Property by False Pretenses (1920) 20 Colum. L.Rev. 318, 319 (Note); see also Perkins, supra, at pp. 304-305 [citing Tunnard’s Case (1729) 2 East P.C. 687, for first introducing the concept of “larceny by trick, ” but noting it was the later case of Rex v. Pear that“gave real impetus to this new development”].) Larceny by trick, a form of larceny, involves taking possession of another’s property by fraud. (3 Torcia, Wharton’s Criminal Law, supra, § 343, p. 350.)
As mentioned at page 5, ante, larceny requires a trespassory taking, which is a taking without the property owner’s consent. (People v. Edwards (1925) 72 Cal.App. 102, 113 (Edwards).) Although a trespassory taking is not immediately evident when larceny occurs “by trick” because of the crime’s fraudulent nature, English courts held that a property owner who is fraudulently induced to transfer possession of the property to another does not do so with free and genuine consent, so “the one who thus fraudulently obtains possession commits a trespass....” (2 Burdick, supra, § 535, p. 301; see also 3 Torcia, Wharton’s Criminal Law, supra, § 343, p. 350; 2 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 15, p. 39 [“the fraud takes the place of the trespass and the defendant is guilty of larceny by trick or device.”].) A California Court of Appeal decision explained nearly 90 years ago: “Though the taking [in larceny] must be against the will of the owner or a trespass to his possession, still an actual trespass or actual violence is not necessary. Fraud may take the place of force.... In [cases of larceny by trick] the fraud vitiates the transaction, and the owner is deemed still to retain a constructive possession of the property.” (Edwards, supra, 72 Cal.App. at p. 113; see Davis, supra, 19 Cal.4th at p. 305, fn. 3 [“When the consent is procured by fraud it is invalid and the resulting offense is commonly called larceny by trick....”].)
The reasoning supporting larceny by trick’s inclusion within the crime of larceny — that fraud vitiates the property owner’s consent to the taking — was not extended, however, to cases involving the fraudulent transfer of title. (3 LaFave, supra, § 19.1(b), p. 61, § 19.6(a), p. 99, § 19.7(a), p. 114; see also Perkins, supra, at p. 308.) Under the common law, if title was transferred, there was no trespass and hence no larceny. (2 Burdick, supra, § 535, p. 302; Perkins, supra, at p. 307.) The theory was that once title to property was voluntarily transferred by its owner to another, the recipient owned the property and therefore could not be said to be trespassing upon it. (2 Burdick, supra, § 564, p. 302; Perkins, supra, at p. 307.) Similarly, under the common law there was no trespass, and hence no larceny, when a lawful possessor of another’s property misappropriated it to personal use. (2 Burdick, supra, at p. 340.) These subtle limitations on the common law crime of larceny spurred the British Parliament in the 18th century to create the separate statutory offenses of theft by false pretenses and embezzlement (see id. at p. 341; id. at pp. 471-472; 3 LaFave, supra, at pp. 61, 99, 114; Perkins, supra, at p. 308), as discussed below.
B. Crimes of Theft by False Pretenses and Embezzlement
In 1757, the British Parliament enacted a statute prohibiting theft by false pretenses. (30 Geo. II, ch. 24 (1757).) Forty-two years later, it enacted a statute prohibiting embezzlement. (39 Geo. III, ch. 85 (1799).) Each was considered a statutory offense separate and distinct from the common law crime of larceny. (3 LaFave, supra, § 19.1(b), p. 61.) Unlike larceny, the newly enacted offense of theft by false pretenses involved acquiring title over the property, not just possession. (Perkins, supra, at pp. 363-364.) Unlike larceny, the newly enacted offense of embezzlement involved an initial, lawful possession of the victim’s property, followed by its misappropriation. (2 Burdick, supra, § 564, p. 339.)
Britain’s 18th-century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states. That import has been widely criticized in this nation’s legal community because of the seemingly arbitrary distinctions between the three offenses and the burden these distinctions posed for prosecutors. (See, e.g., Perkins, supra, at p. 291 [“The intricacies of this patchwork pattern [of theft crimes] are interesting as a matter of history but embarrassing as a matter of law-enforcement.... The wrongful appropriation of another’s money or chattels, with the willful intent to deprive the other thereof permanently, should constitute just one offense....”]; 3 LaFave, supra, § 19.1(b), p. 61 [“As we now look back on history, matters would have been simpler... if Parliament had stretched larceny rather than creating new crimes....”]; Note, supra, 20 Colum. L.Rev. 318 [criticizing the distinctions among the three crimes as an unnecessary impediment to law enforcement]; Van Vechten v. American Eagle Fire Ins. Co. (1925) 239 N.Y. 303, 306 [Justice Benjamin Cardozo, then at the New York Court of Appeals, writing that the central distinction between larceny and ...