People v. Khoury Case Brief

People v. Khoury

108 Cal. App. Supp. 3d 1 | 166 Cal. Rptr. 705 | 1980 Cal. App. LEXIS 2104

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Takeaway

In short, this case holds that a shoplifting larceny can be complete before the defendant leaves the store when the defendant has moved and exercised control over concealed merchandise with intent to steal it.

Background

After pushing a shopping cart around a Fed Mart store for several hours, Khoury brought a large cardboard chandelier box to a checkout stand. The box was loosely and recently taped. A cashier told Khoury that he would need to inspect the box before permitting Khoury to pay the marked price and take it from the store.

Khoury walked back into the store and left the box with the cashier. Store security then arrested him after the box was opened and found to contain more than $900 in batteries, tools, and chain saws rather than a chandelier. A jury convicted Khoury of grand theft under Penal Code section 487, subdivision 1. He appealed, arguing that the evidence established only attempted grand theft because he had not carried the merchandise away.

Issues

Issue #1

Whether substantial evidence supported the jury's finding that Khoury committed the asportation required for completed grand theft by larceny.

Holding

Yes. The evidence supported a finding that Khoury obtained possession and control of the merchandise and moved it with the intent permanently to deprive the store of it, even though he did not take the box past the cashier or out of the store.

Reasoning

Larceny requires both a taking and asportation, meaning that the goods are severed from the owner's possession or custody and come into the thief's possession, even briefly. The property need not be removed from the owner's premises. A movement from the place where the owner kept the property is enough when it is accompanied by the required intent and gives the defendant possession and control for any period of time.

The jury received an instruction accurately stating this rule: carrying away does not require removal from the premises, but does require a removal that gives the perpetrator possession and control while acting with the specific intent permanently to deprive the owner of the property. Whether the facts established that element was therefore a factual question for the jury, not a rule that automatically turned on whether Khoury passed the checkout stand.

The evidence permitted the jury to infer completed asportation. Khoury had removed the chandelier from its carton, filled the carton with approximately $900 of other merchandise, taped it closed, and pushed it in a cart to the checkout stand. Those acts showed that he had taken control of and moved the goods in a manner consistent with stealing them.

Khoury's failure to get the carton past the cashier did not compel an attempt-only verdict. The cashier's intervention was a relevant circumstance, but it was not legally dispositive because California law does not require a thief to leave the store before asportation is complete. Khoury's undisputed intent permanently to deprive the store of the merchandise reinforced the jury's conclusion that his movement and control of the concealed goods constituted a completed taking.

Dissents

Judge Bigelow

Reasoning

Judge Bigelow concluded that the facts showed attempted, rather than completed, grand theft. In his view, asportation requires that the merchandise be removed from the store's possession and control, even if only momentarily.

He read People v. Thompson as turning on the defendant's passage through the checkout stand: carrying concealed records through that point effectively removed them from the store's control. Here, by contrast, the alert cashier stopped Khoury at the checkstand and refused to allow him to take the taped box through without inspection.

The acts of placing merchandise in the chandelier box and taping it established Khoury's intent to steal, but the cashier's intervention prevented him from carrying the goods past the point at which the store relinquished control. Judge Bigelow would therefore modify the judgment to attempted grand theft and remand for resentencing.