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103.4 Theft/Larceny, Retail

    103.4.3 Retail Theft: Defenses And Defense Theories

    103.4.3.1 Applicability Of General Theft/Larceny Defenses
    103.4.3.2 Retail Theft: Taking For Purpose Of Obtaining Refund -- Lack Of Intent As Defense Theory
    103.4.3.3 Theft/Larceny, Retail: 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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    103.4.3.2    Retail Theft: Taking For Purpose Of Obtaining Refund -- Lack Of Intent As Defense Theory                                   

RATIONALE: When theft is based on a taking for the purpose of obtaining a refund, there must be an intent to return the property only upon payment of a refund.

POINTS & AUTHORITIES: After reviewing numerous common law cases and cases from other jurisdictions based on different statutes, the California Supreme Court concluded in People v. Davis (CA 1998) 19 C4th 301 [79 CR2d 295] "the relevant rationales may be reduced to a single line of reasoning that rests on both a principled and practical basis." (Davis, 19 C4th at 315.) This single line of reasoning permits a conviction based on the attempt to obtain a refund from property taken from a store display provided the defendant intended to claim the property's ownership and to restore it only on the condition that the store pay him or her a "refund." (Ibid.; see also People v. Shannon (CA 1998) 66 CA4th 649, 658 [78 CR2d 177] [defendant properly convicted of completed theft rather than attempted theft by removing clothes from the rack in order to fraudulently resell them to the store].) Accordingly, since Davis has articulated a special theory applicable to a charge of theft based upon the attempt to obtain a refund, the jury should be instructed on the elements of this theory as set forth by the Davis court.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

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

    The prosecution alleges that the defendant committed theft by taking property from a store display with the intent to claim its ownership and restore it to the store only on the condition that the store pay [him] [her] a refund. To prove theft on this basis the prosecution must prove beyond a reasonable doubt the following:

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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].