Appellate Brief Writing/Formatting
I will be attaching the files, please follow the directions of the assignment. I do not need any sources or it formatting except in an Appellate brief format following the guidelines of the State of California. If you should have any questions please contact me. You may need westlaw for this project. I will also attach a copy of an example brief.
|Subject||Law and governance||Pages||7||Style||APA|
COURT OF APPEALS OF THE STATE OF CALIFORNIA
ON APPEALS TO THE COURT OF APPEALS OF
THE STATE OF CALIFORNIA FROM
THE SAN FRANCISCO TRIAL COURT
BRIEF OF PETITIONER
Attorney for petitioner
5678, Cary Lane
San Francisco, 78679
Table of Contents
People v. Bell, 197 Cal.App.4th 822(2011)
People v. Solis, 200 Cal.Rptr.3d 463 (2016),
People v. Cox (Not Reported in Cal.Rptr.3d)
California Penal Code 459.5 PC
This Honorable Court has jurisdiction pursuant to California Constitution annotated Cal. Const.
DOES CALIFORNIA PENAL CODE PROVIDE FOR A CONVICTION FOR SHOPLIFTING FOR AN INDIVIDUAL WITH MERE POSSESSION OF PROPERTY BUT WITHOUT INTENT TO DEPRIVE THE OWNER OF HIS/HER PROPERTY?
On Wednesday, the 3rd day of August 2014, Sam Kant entered Bilmart Stores with the intention to purchase some few items for his wife. The things he bought are six 4 oz. Cans of Hoover’s Baked Beans with Bacon. After delivering the boxes to his wife, he was petrified as her wife stated that whatever he had brought was not actually, what she had requested. Apparently, her wife (Mrs. Kant) was very uncomfortable with the taste of Hoover’s Beans. However, she loved the Handell’s brand so much. In fact, she intended to serve the Beans to her book club as she was to host them in the following afternoon. Being dissatisfied with the brand of beans brought to her, Mrs. Kant demanded that her husband returns to Bilmart and exchanges the Hoover’s beans for her favorite Handell’s beans.
Mr. Kant obeyed his wife’s orders and proceeded to the Bilmart Stores early the next morning. However, upon arrival, he found that there was along queue in the customer service area. The annual sponsorship occasioned the long line that the Store was hosting for a major community food drive. Mindful of the book club that her wife was having in the afternoon of the same day, Mr. Kant made efforts to save time. He hoped that the line will get shorter and placed the Hoover beans can he had returned into a shopping cart, proceeded to the grain shelf, dropped the Hoover beans cans and replaced them with Handell’s beans. Upon returning to the customer service area, the line had not diminished. It was evident that at that time, he would have to wait for a considerable number of minutes for the exchange to be formalized.
The fear of his wife’s wrath made Kant proceed to the Store’s exit with the can of Handell’s beans into the shopping cart. However, as he neared the exit doors, a security officer approached him and after questioning, detained him. The security guard had witnessed the entire actions of Mr. Kant in the Store. Obviously, there was no Hoover bean to be returned in the shopping cart as they had already been dropped. Surprisingly, the cart had donations to the community food drive. After questioning Mr. Kant for several minutes, the police officers decided to charge him with shoplifting and larceny in the alternative.
Mr. Kant’s trial was held on the 5th day of August 2014 with honorable Justice Smart as the presiding judge. Justice Smart ruled that while the ingredients of petit larceny were not proved, the offense of shoplifting was established. Mr. Kant intended to deprive the owner of his property and was just about to leave the store.
A PERSON CAN ONLY BE FOUND GUILTY OF SHOPLIFTING IF THEY PERFORM THE ACTIONS OF TAKING AWAY, MOVING, OR REMOVING MERCHANDISE IN A WAY THAT WOULD CAUSE DEPRIVATION OF THE MERCHANDISE FROM THE MERCHANT.
The California Penal Code 459.5 PC- OF CRIMES AGAINST PROPERTY provides inter alia that:-
- Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.
(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.
Pursuant to the above provisions, the prosecution has to establish the ingredients of mens rea and actus reus. Specifically, it has to show that that the defendant had the intention to commit larceny. The offense of theft is defined under the Penal Code 487 PC as the unlawful taking and possession of the property of another person. As such, the intent to deprive the commercial establishment of property must be established. Additionally, the actual taking of the property must be shown and not just the intention.
From the case, it is evident that Mr. Kant did not have the intention to deprive Bilmart Stores of their merchandise as he was merely doing a replacement, which was inconvenienced by the long queues. Additionally, he had possessed the merchandise while still in the Store’s premises.
The trial court, therefore, erred in finding Kant to have intended to possess the merchandise and depriving Bilmart Stores of the property and the decision should be overturned.
In People v. Bell,197 Cal.App.4th 822(2011) the defendant had been convicted in the District Court of Los Angeles County for the offenses of identity theft, making a false financial statement, false personation, and the grand theft of personal property. On appeal, Close Robert Michael Mallano P.J. stated various issues which are critical in establishing intent to deprive. One of those is that the general rule that conviction for larceny should be an intention to deprive the owner permanently of the property is not flexible. As a result, it cannot be said that mere possession of the premises of the Stores in the case of Mr. Kant can be referred to as the intention to deprive the owner of the property. Substantial evidence is key to supporting the intent to deprive the owner of his property permanently.
In People v. Solis, 200 Cal.Rptr.3d 463 (2016), the defendant was convicted in the superior court of Los Angeles County for a felony of unlawfully being in possession of and driving a vehicle. The appellate court was categorical that for larceny to be established, the defendant must take the property in question with the specific aim of permanently depriving the owner of the possession of the same. Additionally, the taking of goods was stated to have two key aspects. One of those is gaining possession of the property while the second is carrying the property away in what is referred to as aspiration. As such, the two aspects of intending to deprive and depriving follow in that order. A conviction cannot be upheld based on suspicions but rather on evidence of intention and actual deprivation.
The ingredients of shoplifting and larceny were also affirmed in People v. Cox (Not Reported in Cal.Rptr.3d) whereby the defendant was charged with 42 counts including larceny. He appealed to the appellate court to reduce the 42 convictions. The court held that the appellant had dual intentions: committing larceny, which made him guilty of shoplifting and burglary. The court stressed that the intention is to be taken from the action of the defendant.
The trial court erred in convicting Mr. Kant for shoplifting. He did not have the intention to deprive Bilmart Stores of their merchandise nor did he actually leave the premises with the merchandise.
WHEREFORE, appellant respectful requests this honorable court to reverse the decision of the trial court and acquit Mr. Kant of shoplifting as well as award damages for wrongful conviction.