stealing my stuff

[Dillon Hunt]

[A purported "peace officer" directs a tow truck driver [conspiracy (a felony) and grand theft under color of authority (a felony)] to steal my car [grand theft auto ( a felony)], from my immediate presence, without my consent (don't consent). While the peace officer might have an interest in my car through D.M.V., where did he get an interest in my private property within the car?
[When I go to the tow company's storage yard or lot [he is in open and blatant possession of my stolen car (a misdemeanor) and my private property within it (a felony)], he wants my money for performing a "service" I did not request [commits extortion (a felony)] before he will return my car and my private property within it. If I don't pay him, he gets a lien [embezzlement (?), more extortion (?)] upon my car for the value of the "service" he provided in initially stealing my car.
[Maybe the new program should be:
The tow truck driver, in conspiracy with the "peace officer", just stole my car; now he wants my money to return my car; now I arrest the tow truck driver [for grand theft auto, conspiracy, and possession of stolen property] and his boss/business owner [for possession of stolen property]; now they go to jail [and maybe out-of-business]; now I get in my car and go home! Bet they won't touch my car again...]

http://www.geocities.com/tthor.geo/vehiclereg.html

[DCLXVI]

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL
State of California

DANIEL E. LUNGREN
Attorney General

______________________________________

OPINION

of

DANIEL E. LUNGREN
Attorney General

CLAYTON P. ROCHE
Deputy Attorney General


No. 97-202

June 9, 1997

__________________________________________________ ____________________________


THE HONORABLE **** MONTEITH, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question:

When the owner of a vehicle has been arrested for driving without a valid license and the vehicle has been impounded, may the owner be found guilty of grand theft for removing the vehicle from the impounding agency's custody without permission or authority prior to the expiration of the 30-day impoundment period?


CONCLUSION

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 found guilty of grand theft for removing the vehicle from the impounding agency's custody without permission or authority prior to the expiration of the 30-day impoundment period.

ANALYSIS

Vehicle Code section 14602.6 [fn. 1] provides:

"(a) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a license, the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle, without the necessity of arresting the person . . . . A vehicle so impounded shall be impounded for 30 days. The impounding agency, within two working days of impoundment, shall send a notice by certified mail, return receipt requested, to the legal owner of the vehicle, at the address obtained from the department, informing the owner that the vehicle has been impounded. Failure to notify the legal owner within two working days shall prohibit the impounding agency from charging for more than 15 days' impoundment when the legal owner redeems the impounded vehicle.

"(b) The registered and legal owner of a vehicle that is removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of, or consider any mitigating circumstances attendant to, the storage . . . .


". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

We are asked whether the owner of a vehicle that has been impounded pursuant to section 14602.6 may be found guilty of grand theft if he or she removes the vehicle without permission or authority from the custody of the impounding agency before the expiration of the impoundment period. We conclude that a person may be found guilty of grand theft in such circumstances.


Penal Code section 487 defines "grand theft" as follows:

"Grand theft is theft committed in any of the following cases:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(d) When the property taken is an automobile, firearm, . . .

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."


Penal Code section 489 prescribes the punishment for grand theft:


"Grand theft is punishable as follows:

"(a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years.

"(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison."

[DCLXVI]

The key statute requiring our analysis is Penal Code section 484, which defines "theft" as follows:


"(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. . . .


". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

In the circumstances presented for consideration, the owner of a vehicle has removed the vehicle from an impounding agency's custody without permission or authority prior to the expiration of the statutory impoundment period. The owner has not contested the seizure or impoundment of the vehicle through the storage hearing procedure established by the Legislature. (§ 14602.6, subd. (b).) Rather, the owner has taken the vehicle at a time when he or she has no right to possession.

While the taking of a vehicle may ordinarily be considered grand theft (Pen. Code, § 487, subd. (d)), is the vehicle in these circumstances "the personal property of another" (Pen. Code, § 484, subd. (a)) so as to constitute "theft"? In other words, may a person be found guilty of stealing his or her own automobile?

The answer to that question has been settled in California for well over 100 years. In the early case of People v. Stone (1860) 16 Cal. 369, the possession of certain personal property was given by the owner to his creditor until his debt was paid. The Supreme Court ruled that the owner could be found guilty of larceny ("feloniously go away with the personal property of another") if he took back the property without the consent of the creditor prior to the time the debt was paid. (Id., at p. 372.) The Supreme Court ruled similarly in the cases of People v. Thompson (1868) 34 Cal. 671, 672 ("If a man takes his own goods from the possession of his bailee, without his knowledge and consent, the taking may . . . be larceny") and Jones v. Jones (1886) 71 Cal. 89, 92 ("A man may steal his own property"). In People v. Cain (1907) 7 Cal.App. 163, 167, the court declared:


". . . The phrase, `personal property of another,' as used in section 484 of the Penal Code, correctly interpreted, means property in the possession of another who is entitled as 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 defined by section 679 of the Civil Code. Our conclusion is 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 to himself, with the intent to charge such bailee with the value thereof, or deprive him of such benefit, constitutes larceny."[fn. 2]


In People v. Photo (1941) 45 Cal.App.2d 345, 351, the court reaffirmed that the phrase "personal property of another" may refer to someone who has rightful custody of the property but not absolute ownership:


"The allegation in the information that appellants `took the personal property of another,' as that term is used in section 484 of the Penal Code, means property in the possession of another who is entitled as bailee, lien claimant, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership, defined in section 679, Civil Code. . . ."


Here, we are given that the owner of the vehicle has no right of possession at the time of the taking of the vehicle from the custody of the impounding agency. We believe that the foregoing cases support the conclusion that one may be prosecuted for taking his or her own property from another's lawful possession. A charge of grand theft may thus be proved under the limited facts we have been given. (See People v. Stone, supra, 16 Cal. at 373; People v. Photo, supra, 45 Cal.App.2d at 353.)

We realize that the taking of a vehicle from the lawful possession of another may constitute different crimes depending upon the circumstances, especially upon the intent of the person taking the vehicle. (See § 10851; Pen. Code, § 459; Civ. Code, § 3070, subd. (b); People v. Morales (1993) 19 Cal.App.4th 1383, 1392-1393; People v. Pater (1968) 267 Cal.App.2d 921, 923-924.) Also, "[a] settled rule of statutory construction precludes prosecution under a general statute when a more specific one describes the conduct involved. [Citations.]" (Finn v. Superior Court (1984) 156 Cal.App.3d 268, 271; see In re Joiner (1959) 180 Cal.App.2d 250, 253.)[fn. 3] However, we do not have facts establishing an offense under any other criminal statute. (See, e.g., People v. Curtin (1996) 22 Cal.App.4th 528, 531 [discussion of crimes of larceny by trick and device and obtaining property by false pretenses].) Accordingly, the general statute making grand theft a crime (Pen. Code, § 487) would be applicable here.[fn. 4]

We thus conclude 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 found guilty of grand theft for removing the vehicle from the impounding agency's custody without permission or authority prior to the expiration of the 30-day impoundment period.

* * * * *
1. All references hereafter to the Vehicle Code are by section number only.

2. Civil Code section 679 provides:

"The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws."

3. If inconsistencies exist in the punishment for similar offenses under different statutes, it is for the Legislature to consider and address. (Finn v. Superior Court, supra, 156 Cal.App.3d at 271.)

4. In In re Joiner, supra, 180 Cal.App.2d 250, the court found that the grand theft statute was inapplicable on facts somewhat similar to those present here, since a specific statute covered the actions of the defendant. The Legislature has changed the statutory language examined in Joiner, and it would no longer cover the limited circumstances we have been given. Hence, sections 484 and 487 remain applicable to our situation.

[DCLXVI]

When someone gets a lien (not even filed) on your car they become legal owner. You are but registered owner.

[robhalford88]

Originally Posted by DCLXVI

When someone gets a lien (not even filed) on your car they become legal owner. You are but registered owner.

A lien is not ownership, it is merely a security interest. Plus, our friend isn't in California, nor did he say that they took his car because of no drivers liscense.
This all applies to PERSONs, not us.

[DCLXVI]

Originally Posted by robhalford88

A lien is not ownership, it is merely a security interest. Plus, our friend isn't in California, nor did he say that they took his car because of no drivers liscense.
This all applies to PERSONs, not us.

I guess you did not follow the link.

This is from the site linked to
"Legal information for the layman acting In Propria Persona.California-specific legal information you (or your counsel) may need. "


Dillon had no car stolen from him. Dillon did not write this.

All of the law is from a website based on California Law.

I read the website.

The California law I responded with is a valid point.

[DCLXVI]

Originally Posted by robhalford88

A lien is not ownership, it is merely a security interest.

An interest is all you can have.

There are no property rights innate in objects themselves. Such rights as there are are in certain persons as against others with respect to the particular objects in question. Since property or title is a complex bundle of rights, duties, powers and immunities, the pruning away of some or a great many of these elements does not entirely destroy the title as pointed out by Professor Hohfeld in "Fundamental Legal Conceptions", 23 Yale Law Journal, 16; 11 Cal. Law Review, 369. Also in 11 Cal. Law Review, at page et seq. 369, is found a very fine discussion of the rights of a possessor in contraband property, and the conclusion is there reached that sufficient attributes of ownership are found in the article to constitute something real and tangible.
(emphasis added) People v. Walker (1939), 33 Cal.App.2d 18, 20.

From the same website.

[DCLXVI]

Originally Posted by robhalford88

A lien is not ownership, it is merely a security interest.

A security interest that creates a "Legal Owner".

Sec. 4450. Certificate of ownership and registration card
The department upon registering a vehicle shall issue a certificate of ownership to the legal owner and a registration card to the owner, or both to the owner if there is no legal owner of the vehicle.

[DCLXVI]

BTW if the cop is working as an agent for the state and the state holds title to the vehicle then how can the cop be "stealing" the car?

Maybe you should look into getting title to your vehicle first.

[Dillon Hunt]

When did the State become the co-owner of the car?

At registration, right.

Sounds like the crime of conversion.

Conversion consists of the breach of what may be called an absolute duty. The act itself is unlawful and is redressable as a tort. It is an instance of strict liability in which care, good faith, and lack of knowledge will not save the defendant. Negligence is not an element. And the motive for the defendant's act is ordinarily immaterial. The foundation for the action of conversion rests neither in the knowledge nor in the intent of the defendant, and conversion does not require proof of wrongful intent. Though the defendant may have acted in good faith or under a mistake, he is not exonerated from liability for conversion "where the law charges him with the duty to know before he intrudes." Although some opinions declare that an intention or purpose to convert must be shown, and although conversion is sometimes defined as an intentional exercise of dominiion over a chattel which interferes with the right of another to control it, or as an act of wilful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession, ordinarily the good faith of the person charged with conversion, his innocent mistake resulting from ignorance of the true facts, his lack of negligence, and his innocent motive are irrelevant in determining whether he committed the conversion charged. Thus, the intent required to constitute conversion is not necessarily a matter of conscious wrongdoing; it is rather an intent to exercise a dominion over the goods which is, in fact, inconsistent with the plaintiff's rights.

Where does the State get a security interest in the Gas I bought for the car and my personal coumputer in the car when towed away? They were still stolen at the time of towing. Right.

How about due process for taking that personal property? Was there a hearing before taking it, as
required by law?

Are they the owner or a co-owner?

Maybe a letter saying if they accept the registration of the car at that time they consent to any towing w/o my consent as their agreement to be liable for the bill.