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VOLUME 7 - CHAPTER 103
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103.3 Theft/Larceny, Auto Or Vehicular

    103.3.3 Auto Theft/Larceny: Defenses And Defense Theories

    103.3.3.1 Applicability Of General Theft/Larceny Defenses
    103.3.3.2 Defense Theory That Taking Of Impounded Vehicle Is Not Theft/Larceny
    103.3.3.3 Theft/Larceny, Auto: Additional Defenses And Defense Theories

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    See FORECITE National™ 103.1.3 [Theft/Larceny: Defenses And Defense Theories].

    See FORECITE National™ 103.2.3 [Theft/Larceny By False Pretenses: Defenses And Defense Theories].

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A California Attorney General's Opinion concluded that when the owner of a vehicle has been arrested for driving without a valid license, and the vehicle has been impounded, the owner may be guilty of grand theft if the vehicle is taken from the impounding agency's custody without permission prior to the expiration of the thirty-day impoundment period. (80 Ops.Cal.Atty.Gen. 142 (June 6, 1997) [No. 97-202].)

    This Attorney General Opinion relied on People v. Stone (CA 1860) 16 C 369, 371 in which the possession of certain personal property was given by the owner to his creditor until his debt was paid. In that case, the Supreme Court held that the owner could be found guilty of larceny if he took back the property without the consent of the creditor prior to the time the debt was paid. (See also People v. Thompson (CA 1868) 34 C 671, 672; People v. Jones (CA 1886) 71 C 89, 92 [11 P 817].) In People v. Cain (CA 1907) 7 CA 163, 167 [93 P 1037], the court declared that the phrase "personal property of another," means "property in the possession of another who is entitled as a bailee, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership." The court concluded that the taking of property by the general owner thereof from the possession of one who rightfully holds it as bailee or otherwise for benefit, with the intent to charge such bailee with the value thereof, or deprive him of the benefit, constitutes larceny. (See also People v. Photo (CA 1941) 45 CA2d 345, 351 [114 P2d 71].)

    However, there are problems with this analysis. First, larceny, unlike embezzlement or false pretenses, requires an intent to permanently deprive the owner of his/her property. (Wharton’s Criminal Law (West, 15th ed. 1993) § 348, pp. 372-76; see also People v. Thompson (CA 1980) 27 C3d 303, 315 fn 5 [165 CR 289]; People v. Turner (CA 1968) 267 CA2d 440, 443-44 [73 CR 263].) The question is, how can a defendant be said to have had an intent to deprive someone permanently of property when that person had only a temporary right to the property? Since permanent and temporary are opposite, if someone has a right to have something temporarily, they don't have a right to have it permanently and thus, can't be deprived of it permanently.

    The second problem with the analysis is that larceny requires a taking with the intent to deprive the owner permanently of the property. (See People v. Edwards (CA 1992) 8 CA4th 1092, 1099 [10 CR2d 821]; People v. Brady (CA 1991) 234 CA3d 954, 957 [286 CR 19].) A bailment statute does not create an ownership interest in the impound agency, the State, county or anyone other than the owner. It gives the impound agency a statutory right to keep the car for a limited amount of time, nothing more. The owner is free to transfer title to the car, mortgage it, sell it, give it to charity, or anything else.

    The Attorney General Opinion acknowledged that the taking of a vehicle from the lawful possession of another may constitute different crimes depending on the circumstances, especially the intent of the person taking the vehicle. (But see FORECITE National™ 103.1.2.4 [Theft/Larceny: Taking Of Property Held As Security Where Lien Has Not Been Perfected].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 103

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].