Supreme Court of California Justia
Docket No. S140865
In re Jesus O.

Filed 3/8/07

IN THE SUPREME COURT OF CALIFORNIA

IN RE JESUS O., A Person Coming Under )
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
S140865
v.
Ct.App. 2/7 B177869
JESUS O.,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. PJ34851

Theft “from the person of another” is grand theft. (Pen. Code, § 487, subd.
(c).) Here, the juvenile and a cohort, intending to steal property, assaulted
someone who possessed a cellular telephone. The victim dropped the telephone
while fleeing. Thereafter, the cohort picked the telephone off the ground and kept
it. We must decide whether these facts constitute grand theft from the person.
Because the telephone was on the victim’s person when the assault began, and the
victim did not voluntarily lay it aside but dropped it while fleeing, we conclude
that they do. When someone, intending to steal, causes property to become
separated from the victim’s person, then gains possession of the property, the theft
is from the person.
1


I. FACTS AND PROCEDURAL HISTORY
Because the sole issue before us is the sufficiency of the evidence to
support the grand theft finding, we state the evidence in the light most favorable to
the judgment below. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
In the early evening of July 5, 2004, Mario H. and three middle school
companions were together at a McDonald’s restaurant in Van Nuys. When the
four left the restaurant, the juvenile, Jesus O., and another, Roberto A., followed
them. The four walked to a nearby alley to get away from Jesus and Roberto, but
the latter two spotted and approached them. Roberto and Jesus loudly announced,
“Assassin Kings,” and asked Mario if he had any money. Mario said he did not.
A moment later, Jesus “sucker punched” one of Mario’s companions in the mouth.
A fight broke out.
At one point, Roberto pulled out a knife and threatened to “shank” Mario.
Scared, Mario and his companions fled down the alley and jumped over a fence.
Mario checked his pants pocket and discovered that his cellular telephone was
missing. One of the group saw the telephone lying on the ground in the alley and
then observed Roberto pick it up and put it in his pocket.
After a hearing, the juvenile court sustained allegations that Jesus
committed grand theft from the person and attempted second degree robbery. The
Court of Appeal found insufficient evidence that the theft of the cellular telephone
was from the person and reduced the grand theft finding to one of petty theft. We
granted the Attorney General’s petition for review.1

1
The juvenile court also found that Roberto A. committed the same grand
theft. In a separate appeal, the Court of Appeal reduced that finding to petty theft
for the same reasons. We also granted review in that case and are holding it
pending this decision. (In re Roberto A., review granted Apr. 19, 2006, S142280;
see Cal. Rules of Court, rule 8.512(d)(2).)
2


II. DISCUSSION
The crime of theft is divided into two degrees, petty theft and grand theft.
(Pen. Code, § 486.) As relevant here, Penal Code section 487 provides: “Grand
theft is theft committed in any of the following cases: [¶] . . . [¶] (c) When the
property is taken from the person of another.” We must decide whether the
evidence supports a finding that Jesus and Roberto committed grand theft from the
person when Roberto took the cellular telephone.
The seminal California case interpreting the “from the person” requirement
dates from the 19th century. In People v. McElroy (1897) 116 Cal. 583
(McElroy), the defendant took $17 from a wallet in the pocket of the victim’s
trousers. The victim had taken the trousers off and was using them as a pillow.
The defendant took the money while the victim slept. Convicted of grand larceny
“from the person” under former Penal Code section 487, the predecessor version
of today’s grand theft statute (see People v. Avery (2002) 27 Cal.4th 49, 53, fn. 4),
the defendant appealed. We reversed the conviction, finding the defendant did not
take the property from the person. We explained that “[t]he stealing of property
from the person has been from an early period under the English statutes treated as
a much graver and more heinous offense than ordinary or common theft—partly
by reason of the ease with which it can be perpetrated and the difficulty of
guarding against it, and partly because of the greater liability of endangering the
person or life of the victim. The same general reason and purpose animate the
modern statutes, including our own . . . .” (McElroy, supra, 116 Cal. at p. 584.)
We then considered whether, to be a taking from the person, “the property must be
actually on, or attached to, the person, or merely under the eye, or within the
immediate reach, and so constructively within the control of the owner.” (Id. at p.
585.)
3
After reviewing the authorities, we found that the statute’s “obvious
purpose was to protect persons and property against the approach of the
pickpocket, the purse-snatcher, the jewel abstracter, and other thieves of like
character who obtain property by similar means of stealth or fraud, and that it was
in contemplation that the property shall at the time be in some way actually upon
or attached to the person, or carried or held in actual physical possession—such as
clothing, apparel, or ornaments, or things contained therein, or attached thereto, or
property held or carried in the hands, or by other means upon the person; that it
was not intended to include property removed from the person and laid aside,
however immediately it may be retained in the presence or constructive control or
possession of the owner while so laid away from his person and out of his
hands. . . . Had the legislature intended that the offense should include instances
of property merely in the immediate presence, but not in the manual possession
about the person, it would doubtless have so provided, as it has in defining
robbery. Robbery is defined as ‘the felonious taking of personal property in the
possession of another from his person or immediate presence,’ etc. (Pen. Code,
[§] 211), while the requirement of this offense is that it shall be ‘taken from the
person.’ ” (McElroy, supra, 116 Cal. at p. 586.)
We concluded that the facts of the case “did not constitute grand larceny
within the statute. The garment from which the money was taken was not at the
time on the person of [the victim]; it was folded up and used as a part of his bed.
Had the garment alone been taken under like circumstances the theft could not be
held to have been from the person. A man does not wear his bed as he does his
clothes. The money was no more on his person in any proper sense than if it had
been concealed under his bed or elsewhere about it, or left in his clothes upon a
chair or hanging on the wall.” (McElroy, supra, 116 Cal. at pp. 586-587.)
4
Applying this test to this case, obviously the telephone was no longer on
Mario’s person when Roberto picked it up from the ground in the alley. Mario
was a substantial distance away at the time. But McElroy is not quite on point, for
here the telephone was on Mario’s person when Jesus and Roberto first assaulted
him. Mario did not voluntarily lay it aside, but instead dropped it unintentionally
while fleeing from Jesus and Roberto. McElroy does not answer the question
whether the fact that the telephone was on the victim’s person when the assault
began supports the grand theft finding. To seek an answer to this question, we
must examine decisions from the Courts of Appeal.
Some cases that the Attorney General relies on have expansively applied
the rule of McElroy, supra, 116 Cal. 583, that the property must be physically
attached to the victim’s person. In People v. Huggins (1997) 51 Cal.App.4th
1654, the victim was sitting on a chair. The defendant took her purse while it was
on the ground but in contact with her foot. The Court of Appeal, relying on “the
crucial fact that the purse was at all times in contact with the victim’s foot” (id. at
p. 1657), found the defendant had taken the purse from her person. “Here, the
victim’s purse had not been laid aside in the sense that the victim’s pants had been
laid aside in McElroy. There the pants had been folded up and used as part of a
bed. Here, by contrast, . . . the victim at all times maintained contact with her
purse for the purpose of maintaining dominion and control over it. Here,
therefore, the purse was actually attached to her person within the meaning of the
rule in McElroy.” (Id. at p. 1658.)
In In re George B. (1991) 228 Cal.App.3d 1088, the juvenile’s accomplice
“stole a bag of groceries from a shopping cart as the victim [Ulbrich] was pushing
the cart in the parking lot of a market.” (Id. at p. 1090.) The Court of Appeal held
that these facts supported a finding that the groceries were on the person under the
rule of McElroy, supra, 116 Cal. 583. “McElroy is distinguishable on its facts.
5
Ulbrich had not laid the grocery bag aside or abandoned control of it. She was
actively carrying the bag, not in her hands to be sure but, as described in McElroy,
‘by other means,’ i.e., through the medium of the shopping cart with which, at the
time of the theft, she was both in physical contact and control. Just as the
shopping cart was ‘attached to [her] person’ so also were its contents in precisely
the same sense as are the contents of a purse which is stolen from the physical
grasp of the victim. In McElroy, neither the money nor the pants were attached to
or in the physical grasp of the slumbering victim. Although his head rested on the
folded pants, he was neither holding nor carrying them or, perforce, the money.
The circumstances in McElroy posed little or no threat of injury or death to the
victim whereas in the instant case a theft from a cart in the victim’s immediate
grasp posed as real a threat of injury or death as a theft of the cart itself.” (In re
George B., supra, at p. 1092.)
Neither People v. Huggins, supra, 51 Cal.App.4th 1654, nor In re George
B., supra, 228 Cal.App.3d 1088, is on point, for in this case the property was not
attached to the victim at the moment the juveniles gained possession under even
the most expansive reading of that requirement.
Two cases defendant relies on are also not on point. In People v.
DeVaughn (1923) 63 Cal.App. 513, the court explained that, to support a finding
of theft from the person, “there must be evidence to support the conclusion that at
the time the property was taken it was actually upon or attached to the person, by
his clothing or otherwise, or that it was in some manner in his actual physical
possession.” (Id. at pp. 515-516.) It found that the evidence of the case supported
the finding that the defendant took a pocketbook directly from the person’s
possession. This case is inconclusive because the court did not have to confront
the question of what the result would have been if the defendant’s actions had
6
caused the property to become separated from the victim’s person before the
defendant gained possession.
In People v. Williams (1992) 9 Cal.App.4th 1465, the victim, Cirrencione,
entered her car and placed some groceries in the back. She “threw her purse onto
the front passenger seat,” and then sat in the driver’s seat. (Id. at p. 1469.) The
defendant approached and grabbed the purse from the passenger seat. The Court
of Appeal held that these circumstances did not support a finding that defendant
stole the purse from the victim’s person. “The evidence is undisputed that at the
time defendant took Cirrencione’s purse from her, the purse was lying on the car
seat. The purse was not upon Cirrencione’s person, attached to her in any way, or
carried by her. Cirrencione had laid the purse aside, although it remained in her
immediate presence and was under her actual control. Under the authority of
McElroy, we are compelled to conclude that the evidence is insufficient as a
matter of law to sustain the conviction for grant theft person . . . .” (Id. at pp.
1471-1472.) Williams is also inconclusive, for, unlike the situation here, the
victim laid the purse aside voluntarily. No evidence existed that the defendant in
Williams did anything to separate the purse from the victim’s person.
Three cases that sustained grand theft convictions are quite close on point.
Two found grand theft from the person when the defendant first attempted to take
the property from the person but the property became separated before he gained
possession. In People v. Carroll (1912) 20 Cal.App. 41, three pickpockets,
including the defendant, worked together to take a purse. The defendant argued
that the jury might have found that before the thieves actually gained possession of
the purse, it had fallen to the ground, and that, if so, he could not be guilty of a
taking from the person. The Court of Appeal disagreed. It held that even if the
defendant had picked the purse off the ground, “the evidence shows that it could
not have dropped to the ground but for the maneuvers of these men who were on
7
the spot with the design to rob him. If the purse dropped, . . . and it was caused to
drop by these men in their effort to commit the larceny, it was in point of law and
common sense a taking from the person.” (Id. at p. 46.)
Similarly, in People v. Smith (1968) 268 Cal.App.2d 117, the defendant and
an accomplice, Glasco, attempted to take a wallet from the victim’s pants. A
struggle ensued, during which the pants were torn off the victim and the wallet fell
to the street. The accomplice picked up the wallet and pants. The Court of Appeal
held that these facts supported a finding of theft of the pants and the wallet from
the person “even though Glasco picked them up from the street; clearly it was
because of the conduct of defendant and Glasco in scuffling with [the victim] . . .
that the wallet and the pants fell to the street where Glasco immediately took
possession of them . . . .” (Id. at p. 120.)
Somewhat different is In re Eduardo D. (2000) 81 Cal.App.4th 545
(Eduardo D.). In that case, the juvenile assaulted the victim, Manuel G., because
the victim did not want to join the juvenile’s “crew.” (Id. at p. 547.) The victim
fled, leaving behind his cap and backpack, which the juvenile then took. The
Court of Appeal found the facts supported a finding of grand theft from the
person. It distinguished its own earlier decision in People v. Williams, supra, 9
Cal.App.4th 1465. “This case is distinguishable from our prior decision in
Williams. Manuel G. did not gladly and of his own free accord remove his
backpack and cap, place them on the ground, or relinquish possession of these
items. Rather, it was as the direct result of the minor’s assault on Manuel G. that
the cap and backpack were removed or fell to the ground. . . . The minor’s initial
actus reus or wrongful deed set the taking of Manuel G.’s possessions in motion.
As a result, there was substantial evidence the theft was from the person of the
victim.” (Eduardo D., supra, at p. 548.)
8
The juvenile implicitly recognizes that, if correctly decided, Eduardo D.,
supra, 81 Cal.App.4th 545, controls this case. The victim here did not relinquish
possession of his property of his own free accord any more than did the victim in
Eduardo D. Rather, in both cases, the initial wrongful deed set in motion the
taking of the property from the victim’s person. However, the juvenile argues, and
the Court of Appeal found, that Eduardo D. was wrongly decided. The Court of
Appeal here explained: “The flaw in the analysis of In re Eduardo D. is that it
does not require a direct physical connection between the victim’s person and the
property taken at the time of the taking. The decision thus departs from the long-
established rule of McElroy requiring the property taken be physically attached to,
or at least connected in some fashion to, the victim in order to establish the ‘from
the person’ element of grand theft person. Notably, there was no evidence in In re
Eduardo D. the juvenile even intended to commit a theft crime. The juvenile
assaulted the victim because the victim did not want to join the juvenile’s crew.
The facts of In re Eduardo D. suggest the juvenile only formed the intent to take
the victim’s property when he found the property lying on the ground after the
victim managed to extricate himself from the fight and run away. At this point the
victim’s cap and backpack were no longer on, attached to, or for that matter,
anywhere near, the victim’s person. In these circumstances the property was not
taken ‘from the person’ of the victim as McElroy requires.”
The juvenile adds that a crime requires a union of act and intent. (Pen.
Code, § 20; see People v. McCoy (2001) 25 Cal.4th 1111, 1117.) As applied to
theft, this means that the defendant must have “the specific intent at the time of the
taking to permanently deprive the owner of the property.” (People v. Edwards
(1992) 8 Cal.App.4th 1092, 1099; see People v. Avery, supra, 27 Cal.4th at p. 54.)
The juvenile argues that, accordingly, the intent to steal must exist “at the time the
property was detached from the person.” We agree with the juvenile that the
9
Eduardo D. court erred to the extent it upheld a finding of grand theft from the
person absent evidence that the act that caused the property to become removed
from the victim’s person was committed with the intent to steal. Because a crime
requires a union of act and intent, under the Eduardo D. facts, if the perpetrator
had no intent to steal while the property was still on the victim’s person, the
perpetrator committed an assault followed by a theft, not a grand theft from the
person. We disapprove In re Eduardo D., supra, 81 Cal.App.4th 545, to the extent
it is inconsistent with this principle.
But this case is distinguishable. Here the evidence shows the juvenile
intended to steal when the assault began. People v. Smith, supra, 268 Cal.App.2d
117, and People v. Carroll, supra, 20 Cal.App. 41, apply to this case, not
Eduardo D., supra, 81 Cal.App.4th 545. The juvenile argues that in those cases
the thieves intended to steal the property actually taken while it was still on the
victims’ person. In this case, no evidence exists that the juveniles were even
aware of the telephone’s existence before they picked it up from the ground;
therefore no evidence exists that they intended to steal the telephone until they
observed it on the ground, i.e., until after it had become separated from the
victim’s person. This is a factual difference, but not one that mandates a different
outcome.
In this case, there was evidence that, while the telephone was still on
Mario’s person, the juvenile asked him if he had any money. This evidence
supports a finding that the juvenile and his cohort intended to steal property of
some kind, even if not specifically the telephone, when the assault that caused
Mario to drop the telephone began, i.e., when the telephone was on Mario’s
person. This generalized intent to steal at the time the telephone was on the
victim’s person satisfies the larcenous intent element of grand theft. The
circumstance that the juveniles asked for money, which they did not succeed in
10
obtaining, rather than specifically for the telephone, which they did eventually
obtain, is not significant. The required mental state is an intent to steal, not an
intent to steal specific property. In People v. Campbell (1976) 63 Cal.App.3d 599,
615, the court found that a defendant who took a purse with the necessary intent
was guilty of the grand theft of a firearm inside the purse. It analogized the
situation to the doctrine of “transferred intent.” (Id. at p. 615, fn. 11.) The
doctrine of transferred intent holds that, assuming other required elements for
murder are present, a person intending to kill is guilty of the murder of all persons
actually killed. (People v. Bland (2002) 28 Cal.4th 313, 323-324.) “Whether one
conceptualizes the matter by saying that the intent to kill the intended target
transfers to others also killed, or by saying that intent to kill need not be directed at
a specific person, the result is the same: assuming legal causation, a person
maliciously intending to kill is guilty of the murder of all persons actually killed.”
(Ibid.) Similarly, those who intend to steal are guilty of the theft of all property
they actually take.
In this case, the juveniles took the telephone from Mario’s person with the
intent to steal, although in two steps. First, they wrongly caused the telephone to
become separated from the person; then they actually gained possession of it. The
taking began with the initial assault, when the telephone was on the person, and
only ended when the juveniles picked it up from the ground. Thus, and in
response to the last paragraph of the dissent, the property was physically
connected to the victim’s person when the juvenile began to take it. The victim
did not relinquish personal possession of the telephone voluntarily but only due to
the juvenile’s wrongful act. These facts pose a “threat of injury or death” to the
victim just as surely as—and perhaps more than—some of the cases upholding a
finding of theft from the person, and thus satisfy the rationale for making theft
11
from the person a more serious crime than ordinary theft. (In re George B., supra,
228 Cal.App.3d at p. 1092.)2
The juvenile also argues that even if we conclude that these facts constitute
grand theft from the person, principles of ex post facto law prohibit us from
applying the conclusion to him. We disagree. Although we may not retroactively
apply an “ ‘unforeseeable judicial enlargement of a criminal statute,’ ” here “we
are not retroactively enlarging a criminal statute but merely interpreting one.”
(People v. Billa (2003) 31 Cal.4th 1064, 1073.) “Our holding is a routine
interpretation of existing law, not an overruling of controlling authority or a
sudden, unforeseeable enlargement of a statute.” (Ibid.)
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.

2
The juvenile court found the juvenile committed grand theft from the
person and only an attempted robbery. On these facts, however, it appears the
court could have found the juvenile committed a completed robbery of the
telephone. If this is correct, which we need not decide, this circumstance does not
preclude the actual finding, which might have benefited the juvenile.
12





DISSENTING OPINION BY MORENO, J.

Law often is a complicated business, but that is not always the case.
Sometimes the Legislature enacts a statute in simple language that can be easily
applied. Unlike the majority, I think this is such a case. The majority concludes
that the juvenile in this case committed grand theft from the person despite the fact
that the stolen cell phone was taken from the ground, not from the person of the
victim. I agree with the Court of Appeal that the juvenile committed an attempted
robbery and petty theft, but did not commit a grand theft from the person of the
victim.
Penal Code section 487, subdivision (c) states that theft is grand theft
“When the property is taken from the person of another.” This court has applied
this statute by its terms for more than 100 years. People v. McElroy (1897) 116
Cal. 583, held that the defendant did not commit grand theft from the person by
taking money from the pocket of the victim’s pants, which the victim had removed
and was using as a pillow. We held this was not grand theft from the person
because the “garment from which the money was taken was not at the time on the
person of [the victim] . . . .” (Id. at p. 586.) The statute “was not intended to
include property removed from the person and laid aside, however immediately it
may be retained in the presence or constructive control or possession of the owner
while so laid away from his person and out of his hands.” (Ibid.)
1



The majority attempts to distinguish McElroy on the basis that, in the
present case, the cell phone was in the victim’s pocket when defendant assaulted
him, relying upon the fact that the victim did not voluntarily lay the phone aside
but rather dropped it as he fled. The majority concludes that “McElroy does not
answer the question” posed in the present case and relies instead on other
authority. (Maj. opn., ante, at p. 5.) But our seminal decision in McElroy cannot
be so easily dismissed. If we examine the reasoning of our decision in McElroy, it
is clear that the fact that the victim in the present case did not voluntarily lay the
phone aside is a distinction without a difference.
We observed in McElroy that one reason that theft from the person is
“treated as a much graver and more heinous offense than ordinary or common
theft” is “because of the greater liability of endangering the person or life of the
victim.” (People v. McElroy, supra, 116 Cal. 583, 584.) After reviewing cases
that had required that the stolen property had actually been on the person of the
victim when it was taken, we stated: “In view of these authorities and the origin
of the statute, we think its obvious purpose was to protect persons and property
against the approach of the pick-pocket, the purse-snatcher, the jewel abstracter,
and other thieves of like character who obtain property by similar means of stealth
or fraud, and that it was in contemplation that the property shall at the time be in
some way actually upon or attached to the person . . . ; that it was not intended to
include property removed from the person and laid aside . . . .” (Id. at p. 586,
italics added.)
This reasoning applies equally whether the victim has voluntarily laid aside
the property, or dropped it accidentally while fleeing. Once the property no longer
is attached to the person of the victim, the theft does not entail the type of
increased danger to the person or life of the victim that this statute was designed to
2

address. As the facts of this case demonstrate, neither does such a crime involve
stealth or fraud like that employed by a pickpocket or purse snatcher.
Although the facts in McElroy are not identical to those in the present case,
the decision in that case remains controlling. We said in no uncertain terms that
the statute means what it says, stating: “the requirement of this offense is that [the
property] shall be ‘taken from the person.’ ” (People v. McElroy, supra, 116 Cal.
583, 586, italics in original.) The cell phone in the present case was not taken
from the person of the victim, so the statute does not apply. It is as simple as that.
One Court of Appeal decision ruled that facts similar to those in the present
case constituted a theft from the person, but the majority acknowledges that this
case was wrongly decided. (In re Eduardo D. (2000) 81 Cal.App.4th 545.)
Eduardo D. accosted the victim in that case and punched him in the face, starting a
fist fight. The victim eventually managed to pull away and fled, leaving behind
his baseball cap and backpack. As he ran away, the victim saw Eduardo D. take
the cap and backpack. The Court of Appeal ruled that the juvenile committed a
theft from the person of the victim because the victim “did not gladly and of his
own free accord remove his backpack and cap, place them on the ground, and
relinquish possession of these items. Rather, it was as the direct result of the
minor’s assault on [the victim] that the cap and backpack were removed or fell to
the ground.” (Id. at p. 548.)
The majority correctly disapproves the decision in Eduardo D. but does so
for the wrong reason, stating: “Because a crime requires a union of act and intent,
under the Eduardo D. facts, if the perpetrator had no intent to steal while the
property was still on the victim’s person, the perpetrator committed an assault
followed by a theft, not a grand theft from the person.” (Maj. opn., ante, at p. 10.)
Eduardo D was wrongly decided not because of a lack of “union of act and
3

intent,” but rather because Eduardo D., like the juvenile in the present case, took
the victim’s property from the ground, not from the person of the victim.
Until the present case, Eduardo D. was the only published decision to hold
that a theft from the person had occurred when the victim had not been in physical
contact with the property when it was taken. (See, e.g., People v. Huggins (1997)
51 Cal.App.4th 1654 [property touching the victim’s foot]; In re George B. (1991)
228 Cal.App.3d 1088 [property being carried in shopping cart pushed by the
victim]; cf. People v. Williams (1992) 9 Cal.App.3d 1465 [no grand theft from the
person where purse was stolen from passenger seat of vehicle and the victim was
not touching the purse].) As we held in McElroy, grand theft includes theft from
the person of the victim because taking property that is physically connected to the
victim increases the danger to the victim and thus warrants greater punishment.
(People v. McElroy, supra, 116 Cal. 583, 584.) Therefore, the statute did not
apply in Eduardo D., and does not apply in the present case, because the property
was not actually taken from the person of the victim.
Rather than be guided by our decision in McElroy, the majority relies upon
two decisions by the Court of Appeal, which I believe are distinguishable. In
People v. Carroll (1912) 20 Cal.App. 41, the defendant and two accomplices
accosted the victim as he attempted to board a train; one accomplice blocked the
victim’s path while the other pushed him from behind, allowing the defendant to
approach the victim. The victim heard the defendant say “ ‘I have got it’ ” and the
victim found his pants pocket had been turned inside out and his wallet was
missing. (Id. at p. 43.) The defendant argued on appeal that the trial court erred in
refusing to instruct the jury on petty theft because the wallet may have fallen to the
ground before the defendant took it. The court held: “In the case here the
evidence leaves no rational inference that defendant picked up the purse from the
ground and, even if he did so, the evidence shows that it could not have dropped to
4

the ground but for the maneuvers of these men who were on the spot with the
design to rob him. If the purse dropped, which is a mere surmise or possibility
unsupported by any evidence, and it was caused to drop by these men in their
effort to commit the larceny, it was in point of law and common sense a taking
from the person. . . . The condition of [the victim]’s pocket when he put his hand
down to it showed that it had been pulled out, which must have been done by the
defendant. [The victim]’s testimony was that the defendant stood at his side and
back of him when he said to his confederates, ‘I have got it.’. . . We do not think
the evidence showed that there was a reasonable probability or a reasonable
possibility that the defendant picked up the purse from the ground or that it came
out of [the victim]’s pocket otherwise than through defendant’s agency.” (Id. at
p. 46, italics added.)
Thus, Carroll involved a garden-variety pickpocket. The defendant in
Carroll took the wallet from the victim’s pocket either by seizing the wallet
directly or turning the victim’s pocket inside out. This is precisely the type of
situation at which the statute was aimed, and differs markedly from the
circumstances in the present case.
The decision in People v. Smith (1968) 268 Cal.App.2d 117, upon which
the majority also relies, similarly involves facts that are very different from those
in the present case. In Smith, “Glasco, defendant and [the victim] became
involved in an argument; . . . Glasco grabbed [the victim] by the pants and a
struggle involving all three persons ensued; while Glasco and defendant were
‘scuffling’ with [the victim] both of them were trying to get their hands into [the
victim’s] pocket; in the struggle [the victim’s] wallet fell to the street and his pants
were torn off of him; Glasco picked up the wallet and pants and, accompanied by
defendant, carried them to the rear of a nearby hotel. Shortly thereafter the police
arrived . . . . The back pockets of the pants had been torn down and the wallet was
5

empty.” (Id. at pp. 118-119.) The Court of Appeal held this was grand theft from
the person, explaining that a witness saw “Glasco and defendant put their hands in
[the victim]’s pockets, [the victim’s] wallet and pants fall to the street, Glasco pick
them up and with defendant run to the rear of the hotel. It cannot fairly be denied
that both wallet and pants were taken from the person of defendant, even though
Glasco picked them up from the street; clearly it was because of the conduct of
defendant and Glasco in scuffling with [the victim], getting into his pockets and
pulling on his pants, that the wallet and the pants fell to the street where Glasco
immediately took possession of them, ending the struggle, and accompanied by
defendant, ran away.” (Id. at p. 120, italics added.) In Smith, therefore, the
defendant reached into the victim’s pocket and either removed the wallet, or
ripped the pocket, causing the wallet to fall to the ground, where the defendant’s
accomplice could pick it up.
The majority broadly characterizes Carroll and Smith as cases in which
“defendant first attempted to take the property from the person but the property
became separated before he gained possession.” (Maj. opn., ante, at p. 7.) This
characterization is accurate, but it ignores the more important point that in both
Carroll and Smith the defendant physically removed the property from the
victim’s person. The defendants in both Carroll and Smith, therefore, stole
property from the person of the victim.
The present case is very different from Carroll and Smith. The juvenile in
the present case did not reach into the victim’s pocket. Rather, he simply caused
the victim to run, which in turn presumably caused the cell phone to fall from the
victim’s pocket to the ground where the juvenile’s accomplice could pick it up. In
both Carroll and Smith the defendant took the property from the victim’s person
by reaching into the victim’s pocket. Here, the juvenile took the property from the
ground, not from the victim’s person.
6

In concluding that the juvenile in the present case committed grand theft
from the person when his accomplice picked up the victim’s cell phone from the
ground, the majority expands the statutory phrase “taken from the person of
another” beyond its commonsense meaning as well as its historical bounds. Under
the majority’s interpretation, a grand theft from the person will occur whenever a
thief “wrongly cause[s] the [stolen property] to become separated from the
person” of the victim. (Maj. opn., ante, at p. 11.) In my view, this is an
unwarranted expansion of the scope of the statute.
I prefer to apply the statute according to its plain, apparent meaning. If
property is physically connected to the victim’s person when the thief takes it, it is
theft from the person. If not, it is not.
MORENO, J.
7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Jesus O.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 135 Cal.App.4th 237
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S140865
Date Filed: March 8, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Gary A. Polinsky, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Patricia Ihara, under appointment by the Supreme Court, and Kiana Sloan-Hillier, under appointment by
the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E.
Maxwell, Stephanie Brenan, Kristofer Jorstad, Lawrence M. Daniels and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.

*Pursuant to California Constitution, article VI, section 21.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia Ihara
PMB 139, 5319 University Drive
Irvine, CA 92612
(949) 733-0746

Daniel C. Chang
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2395


Opinion Information
Date:Docket Number:
Thu, 03/08/2007S140865

Parties
1O., Jesus (Defendant and Appellant)
Represented by Patricia Ihara
Attorney at Law
5319 University Drive, PMB 139
Irvine, CA

2The People (Plaintiff and Respondent)
Represented by Daniel Chi-Sum Chang
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA


Disposition
Mar 8 2007Opinion: Reversed

Dockets
Feb 1 2006Petition for review filed
  Respondent People Deputy Attorney General Daniel C. Chang
Feb 3 2006Received Court of Appeal record
 
Feb 22 2006Request for depublication (petition for review pending)
  by Daniel C. Chang, Deputy Attorney General (counsel for respodent)
Mar 24 2006Time extended to grant or deny review
  to 5-2-06
Apr 19 2006Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 8 2006Counsel appointment order filed
  Patricia Ihara is appointed to represent appellant. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed.
May 11 2006Request for extension of time filed
  opening brief/merits to 6-19-06 Deputy Attorney General Daniel C. Chang
May 24 2006Extension of time granted
  to 6-18-06 for respondent to file the opening brief on the merits.
Jun 16 2006Opening brief on the merits filed
  Respondent, Attorney General
Jul 12 2006Request for extension of time filed
  by Patricia Ihara, counsel for appellant requesting to & including August 16, 2006 to file the answer brief on the merits
Jul 18 2006Extension of time granted
  to 8-18-06 for appellant to file the answer brief on the merits.
Aug 17 2006Answer brief on the merits filed
  Appellant Jesus O. Attorney Patricia Ihara
Aug 28 2006Request for extension of time filed
  respondent, Deputy Attorney General request to October 6, 2006 to file the reply brief brief on the merits. Daniel C. Chang, Deputy Attorney General (counsel)
Sep 6 2006Extension of time granted
  To 10-6-06 for appellant to file the reply brief on the merits
Oct 6 2006Reply brief filed (case fully briefed)
  The People, respondent Daniel C. Chang, Deputy Attorney General
Dec 5 2006Case ordered on calendar
  Wednesday, January 10, 2007, at 9:00 a.m., in San Francisco
Jan 10 2007Cause argued and submitted
 
Mar 7 2007Notice of forthcoming opinion posted
 
Mar 8 2007Opinion filed: Judgment reversed
  and remanded. Opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar & Corrigan, JJ. Dissenting Opinion by Moreno, J.
Mar 28 2007Compensation awarded counsel
  Atty Ihara
Apr 12 2007Remittitur issued (criminal case)
 
Apr 23 2007Note:
  One vol. of case record sent to C/A
Apr 25 2007Received:
 

Briefs
Jun 16 2006Opening brief on the merits filed
 
Aug 17 2006Answer brief on the merits filed
 
Oct 6 2006Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website