On July 11, 1996, Roger Jara, a loss prevention agent at the J. C. Penney store at the Stonewood Mall in Downey, watched Shannon walking around the store. Shannon was carrying a bag which appeared to have two items in it. Jara followed Shannon to the dress department. Jara saw Shannon hold up two skirts and a sweater, undo the clips holding these items to their hangers, and allow the items to fall to the ground, out of Jara’s sight. Shannon bent down, picked up the bag, and walked over to the cashier.

The bag was now noticeably fuller. Jara checked the area where Shannon had been standing and found three empty hangers. Lisa Lugo, another loss prevention agent who was monitoring the store’s surveillance cameras, also watched Shannon’s actions. She agreed the bag Shannon was carrying was noticeably fuller after he stood up and walked to the cashier. When Shannon reached the cashier, he placed the items in his bag on the counter. Jara telephoned the cashier, Maria Mikhailides. In response to Jara’s question, Mikhailides confirmed Shannon asked for a cash refund for the items. Jara told her to give him the refund. When Mikhailides tried to process the refund, a code appeared on the cash register, indicating Shannon had exceeded the refund limit for that time period. She telephoned store security and was authorized to complete the refund. She gave Shannon a $102.83 cash refund. Shannon then left the store. After he did so, Jara placed him under arrest. In defense, Yamileth Santos, Shannon’s fiancée, said that on July 11, 1996, she asked him to return some items for her at the store. Santos had bought these items, including two skirts and a sweater, earlier. Edmundo Santos, Yamileth’s father, lent Shannon his automobile that day so defendant could return the items for her. Shannon urges us to reduce his conviction to attempted petty theft, a misdemeanor, or grant him a new trial. Because we reject this argument, we need not address Shannon’s related claim that the trial court erred in not instructing the jury regarding a lesser included crime of attempted petty theft.

Shannon makes two related arguments why, as a matter of law, he committed only attempted, not completed, theft. First, Shannon argues he could not be convicted of completed theft of the skirts and sweater which he put into his bag and subsequently returned for a cash refund, because he did not remove the clothes from the store. Second, Shannon argues the theft was not completed at that point because he did not intend to permanently deprive the store of the clothes. We reject both arguments. Theft, of which Shannon was convicted, is the unlawful taking of another’s property. The crime includes larceny, embezzlement, larceny by trick, and theft by false pretenses.

Larceny, larceny by trick, and embezzlement involve taking another’s personal property from the owner’s possession, without the owner’s consent, with the intent to deprive the owner permanently of the property. Theft by false pretenses does not require that the defendant take the property; it requires that the defendant use false pretenses to induce the other to give the property to him. The jury here was instructed only on larceny.

The completed crime of larceny—as distinguished from an attempt—requires asportation or carrying away, in addition to the taking. The element of asportation is not satisfied unless it is shown that “the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment.”‘ However, one need not remove property from the store to be convicted of theft of the property from the store. One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently.

Indeed, the standard jury instruction defining theft by larceny states: “To constitute a ‘carrying away,’ the property need not be actually removed from the [place] [or] premises where it was kept.” . . . Thus, Shannon’s claim that he could not be guilty of completed theft unless he took the clothes outside the store is wrong. On facts identical to Shannon’s, a recent case adopts a contrary position without citation to authority or analysis.

A loss prevention agent watched Ingram take a pair of pants off a rack, go to the refund counter, and remove the price tag when the clerk turned away. The agent telephoned the refund clerk and told her to process any return/refund Ingram attempted. The agent stood nearby and overheard Ingram say he received the pants as a gift. Ingram disputed the clerk’s price quote for the pants, claiming they sold for more. The clerk completed the refund and gave Ingram the money. Ingram was arrested as he walked away from the counter… The appellate court reversed the theft conviction, but refused to modify it to attempted theft, which it concluded Ingram committed, because the jury was not offered that alternative.

As noted, on this issue Ingram took a contrary position without citation to authority or analysis: “ [W]e address the theory—propounded by the trial court and adopted by the prosecution—that Ingram’s actions amounted to larceny because he had the intent to either steal money by getting a refund or steal the pants if the cash return was denied. We consider this theory even though it is somewhat speculative with respect to Ingram’s state of mind. In any event, there was insufficient evidence to support a larceny conviction under this theory, because Ingram did not walk away with the pants. In other words, the crime of stealing the pants was not completed; at most, the court’s hypothesis would support an attempted theft by larceny.

In sum, the evidence was insufficient to support the theft charge on theories of common law larceny, larceny by trick or device, or theft by false pretenses.”

The Ingram prosecutor originally proceeded on a theft by false pretenses theory. When the trial court indicated it would grant Ingram’s section 1118.1 motion on that theory because the store “consented’ to giving Ingram the money, the trial court suggested and the prosecutor adopted a larceny theory that the theft was complete when Ingram moved the pants with the intent to steal either the money from a false refund or the clothes

To the extent the quoted phrase suggests there was no movement at all, and thus a complete proof failure on the asportation requirement, it is factually incorrect. Ingram did walk away with the pants after taking them from the rack, hiding them in his bag, and removing the price tag. He walked over to the exchange counter with them. To the extent the phrase suggests Ingram had to get the pants out of the store to complete the theft, it is legally wrong. As discussed above, one need not leave the store, or escape, to complete the theft; any movement with the requisite intent does so. The theft was complete when Ingram put the pants in the bag with the intent to deprive the store of their value. Likewise, in our case, the theft was complete when Shannon put the clothes in his bag with the intent to fraudulently obtain money for them by falsely exchanging them for their monetary value. This conclusion alone compels affirmance. Shannon then makes a related point: The theft was not complete when he took the clothes because he did not intend to permanently deprive the store of the clothes, but only intended to take the money he would receive from the false refund. Ingram did not address this point, which we reject. As the jury was instructed, theft requires the specific intent to permanently deprive the owner of its property.

“Asportation of the property with the intention to appropriate it is sufficient to constitute larceny even though the property may subsequently be returned to the owner. . . . The fact that a thief is prevented by an officer from getting away with the property, or that he may change his mind and return the property to escape prosecution for the crime, does not relieve him from the consequences of the theft. [T]heft may be committed when the accused persons, with a preconceived design to obtain and appropriate property by means of fraud or trickery, thereby gain possession of the property, even though they do not retain or use it for their own benefit.”

Moreover, the prosecution need not show the defendant took the property for his own use; the intent to destroy it and thus deprive the owner of its use is sufficient. Thus, the fact that Shannon apparently did not intend to keep the clothing, but to steal its monetary value by exchanging the clothes while falsely claiming to own them, does not alter our conclusion that the theft was complete when he put the clothes in his bag with the described intent. Shannon unquestionably intended to permanently deprive the store of money equal to the clothes’ value, and thus to “use [them] for [his] own benefit.”

There is no evidence that had Shannon been unable to complete the fraudulent refund, he would have abandoned the stolen clothes rather than leaving the store with them. In any event, even if Shannon intended to abandon the clothes if his scheme failed, the theft was complete when he dropped the clothes into his bag intending to defraud the store of their monetary value. The fact that Shannon planned to get the money from the store, rather than taking the clothes and selling them to a fence or innocent buyer, or trading them for drugs, or any of the other myriad ways in which he could have appropriated their value other than by wearing them, is irrelevant. Unlike a joyrider, who plans to use the car temporarily and then return it, Shannon intended not to unconditionally return the clothes, but to appropriate them for his purpose of selling them back. “One who takes another’s property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time—and having a substantial ability to do so—lacks the intent to steal required for larceny.”

Put another way, “the intent to steal is an intent to deprive the possessor permanently. One who takes another’s property for temporary use or concealment, with the intention of returning it, is liable in tort for damages but is not guilty of larceny”

Stay was convicted of five counts of completed grand theft, some from stores that paid him for their returned carts, some from stores who refused to pay and whose carts he resold after altering them. We affirmed. First, we rejected Stay’s claim that, like the legitimate companies described above, he was acting under a statute which entitled those who returned shopping carts to their owners “`without compensation’” to receive “‘a reasonable charge for saving and taking care of the property[,]’” and thus was not guilty of theft or attempted theft.

Second, and dispositive of this issue, we rejected Stay’s argument that he did not commit theft because he did not intend to deprive the stores of their carts permanently. In doing so, we did not distinguish between those stores which paid the ransom and got their carts back, and those who refused and never got them back because Stay sold them to others. Thus, although Stay never intended to keep the carts, but stole them intending to ransom them back to their owners or, failing that, sell them to others, we affirmed his completed theft convictions.

Although the scheme here is different, the result is the same. In neither case does it matter that the thief intends to sell the victim’s property back to the victim after wrongfully stealing the property and claiming to be the rightful owner, thus ultimately stealing the victim’s money rather than the property. Shannon completed the theft when he moved the clothes, thus appropriating them and intending to fraudulently resell them to the store. On this basis, the evidence supports Shannon’s larceny conviction.

Court of Appeal of California, Second District, Division One, Selections from “People v. Shannon, 66 Cal.App.4th 649,” 1998.

On July 30, 1996, police officers responded to a report of a burglary in progress at an apartment complex. The officers found defendant Woods and a female companion inside a laundry facility within the complex. One of the washing machines had been pulled from the wall and its coin box had been broken. Fresh pry marks were visible on the door to the laundry room. The apartment manager told police he had locked the laundry room an hour before and at that time nothing in the room had been disturbed. The manager further reported that neither Woods nor his companion lived in the complex. The complex is a two-story, U-shaped building with an open air courtyard in the middle. Entry into all the individual apartments is via the courtyard. Unlocked, wrought iron gate entrances stand on three sides of the complex. The laundry room is on the ground floor in a corner of the complex. Occupied apartments are immediately above and adjacent to the laundry room, which is also entered from the courtyard. The entire building, including the laundry room, is covered by a single roof.

Woods does not dispute he burglarized the laundry facility within the apartment complex. Instead, he challenges the court’s finding as to the degree of that burglary. First degree burglary is: “Every burglary of an inhabited dwelling house; . . . all other kinds of burglary are of the second degree.” Woods argues the evidence does not support a first degree burglary conviction because a “commercial laundry facility” within the common area of an apartment complex does not constitute an inhabited dwelling house.

“Courts have explained that the term ‘inhabited dwelling house’ means a ‘structure where people ordinarily live and which is currently being used for dwelling purposes. The burglary statute defines “inhabited” as “currently being used for dwelling purposes, whether occupied or not.” Case law has expanded the definition of “inhabited dwelling house” to include areas not normally considered part of the “living space” of a home. For example, in People v. Moreno (1984) 158 Cal.App.3d 109, the court affirmed a first degree burglary conviction based on the defendant’s entry into a garage that was attached to the house and under the same roof but was accessible only through an exterior entrance. Despite the lack of a connecting door between the garage and the interior of the house, the court concluded the garage was part of an inhabited dwelling because it “was under the same roof, functionally interconnected with, and immediately contiguous to other portions of the house. . . .”

People v. Zelaya (1987) 194 Cal.App.3d 73 presents a factual scenario closely akin to the matter before us. In People v. Zelaya the defendant was convicted of first degree burglary for having climbed through a damaged vent to enter the common garage and basement storage areas of an apartment building. As in the present case, the defendant in Zelaya argued the burglary he committed was not of an inhabited dwelling. The court rejected the argument, concluding that the garage and storage rooms Zelaya entered “were functionally connected with, and an integral part of, the building’s living quarters, and were therefore part of an ‘inhabited dwelling house’ within the meaning of Penal Code section 460.” People v. Zelaya is not entirely apposite because the storage rooms in issue in that case were used by the tenants to store their personal belongings. Such rooms fall more clearly within the traditional notion of a dwelling house—a place where mementos and other personal items are kept and thus a space deserving of special protection.

As the court observed in People v. DeRouen (1995) 38 Cal.App.4th 86 “ ‘A burglary of an inhabited dwelling involves an invasion of perhaps the most secret zone of privacy, the place where trinkets, momentos, heirlooms, and the other stuff of personal history are kept. Society therefore has an important interest in seeing to it that burglars stay out of inhabited dwelling houses.’ There is no evidence the laundry room at issue in the present case was used by tenants to store personal property. Moreover, Woods argues the laundry room fails the objective test for an inhabited dwelling applied in the cases cited above.

Woods does not dispute the laundry room is “under the same roof” and “immediately contiguous to” occupied apartments above and below. Rather, he contends the laundry room is not “an integral part” of any of the individual dwelling units in the complex and thus is itself not an inhabited dwelling. Woods fails to cite any authority for his contention that the laundry room must be an integral part of an individual apartment unit as opposed to an integral part of the complex in order to constitute an inhabited dwelling. People v. Zelaya, of course, holds to the contrary. In that case, the court upheld a first degree burglary conviction based on its finding that the burglarized garage and storage rooms were “an integral part of … the building’s living quarters[.]” Similarly, in the present case, the relationship of the laundry room to the complex itself is the proper focus of inquiry. Based on the evidence of the physical placement of the laundry room within the complex and the fact it was used by tenants to do their laundry, a household chore, we find no error in the court’s implied finding this room was an integral part of the complex, and thus an inhabited dwelling. Woods further suggests the laundry room fails the alternative “reasonable expectation test” for an inhabited dwelling.

In People v. Brown (1992) 6 Cal.App.4th 1489 the court explained this test and its underlying rationale. “Since one of the purposes of the burglary statute is to protect against unauthorized entry and the attendant danger that the occupant will react violently to the intrusion, the reasonable expectation test focuses on the protection the inhabitants of a structure reasonably expect. In situations implicating this particular purpose, the proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusions.”

Since the apartment building here was not a “security type” complex, and because each tenant had access to the laundry room, Woods asserts tenants had no expectation of privacy or increased security when inside the room. In fact, Woods asserts “a tenant would expect strangers in that facility.” Of course, Woods ignores the fact that the “strangers” a tenant would expect to meet in the laundry room were fellow tenants doing laundry, not burglars. The evidence established the room was usually kept locked so that only tenants were permitted access to it. This evidence is sufficient to support a finding, under the reasonable expectation test, that the laundry room is an area where tenants would expect protection from unauthorized intrusions, and thus it qualifies as an inhabited dwelling.

Finally, Woods argues the “philosophical rationale supporting the distinction between first and second degree burglary” leads to the conclusion the burglary he committed was only of the second degree. In support of his argument, Woods cites a discussion in People v. Cruz, which explains that the law recognizes residential burglary as a more serious offense because of society’s interest in protecting “the peaceful occupation of one’s residence”. Specifically, the court states the occupied dwelling receives “heightened protection under our statutes in order to avoid the increased danger of personal violence attendant upon an entry into a ‘building currently used as sleeping and living quarters.’ . . . ‘A person is more likely to react violently to burglary of his living quarters than to burglary of other places because in the former case persons close to him are more likely to be present, because the property threatened is more likely to belong to him, and because the home is usually regarded as a particularly private sanctuary, even as an extension of the person.’

We cannot agree with Woods that the policy interests underlying the offense of residential burglary, as described by the court in People v. Cruz, are not implicated by his crime. As we explained, the residents of the apartment complex at issue could reasonably expect to be safe from unauthorized intrusion in the laundry room. Though tenants may not have “stored” personal belongings in the laundry room, clothes being washed in the machines would certainly be personal property at risk in a burglary of the room. We conclude the safety and privacy expectations surrounding an inhabited dwelling house are present in the common area laundry room of the apartment complex Woods burgled here. The evidence supports his first degree burglary conviction.

Court of Appeal of California, Fourth District, Division Three, Selections from “People v. Woods, 65 Cal.App.4th 345,” 1998.