ROTHSCHILD, J., Concurring and Dissenting. The majority opinion works a major change in California’s law of theft. Under California law, a defendant is guilty of theft only if the defendant acted with “an intent to deprive the owner permanently of possession of the property. [Citations.]” (People v. Davis (1998) 19 Cal.4th 301, 307 [79 Cal.Rptr.2d 295, 965 P.2d 1165].) The majority holds that an intent to deprive the owner permanently of a temporary interest in possession of property constitutes an intent to deprive the owner permanently of possession of property. That holding eliminates the intent-to-deprive-permanently requirement—every intent to deprive the owner temporarily of possession is an intent to deprive the owner permanently of a temporary interest in possession, which in turn, under the majority’s holding, is an intent to deprive the owner permanently of possession. Thus, under the majority opinion, every intent to deprive the owner temporarily of possession will satisfy the intent element for theft. Perceiving no basis or authority for such a rewriting of the law of theft, I respectfully dissent from the affirmance of Bell’s theft conviction.
Bell’s conduct, as proven at trial, was wrongful and criminal, and she has been convicted and is being punished. Her conduct constituted identity theft (count 1), false personation (count 2), and making a false financial statement (count 3). The only remaining question is whether, in addition to committing those three offenses, she also committed grand theft (count 4). The record contains no evidence that she did.
In order to determine whether Bell committed theft, we must first identify the property she allegedly took. The information alleged that Bell “did unlawfully take money and personal property of a value exceeding [f]our [hjundred [d]ollars ($400), to wit rent money and U.S. currency $3045.41 the property of Leah Tomel Taylor, Healstone Property Management.” (Some capitalization omitted.) The record, however, contains no evidence that Bell took any rent money or currency from anyone. The prosecution has never argued to the contrary, either in the trial court or on appeal. At trial, the prosecution likewise correctly conceded that Bell did not take the apartment (“obviously the apartment is still there, they don’t . . . walk away with the apartmént”).
[830]Instead, the prosecution took the position, variously phrased, that the property Bell took was a leasehold interest (or perhaps a portion of a leasehold interest) in the apartment. Respondent continues to advocate that position on appeal. The majority agrees and accepts the theory that the taking of (a portion of) a 12-month leasehold interest in an apartment can constitute a theft.
That theory is mistaken. For the reasons already explained, a temporary interest in possession of property cannot itself constitute stolen property for purposes of a theft charge. If it could, then so-called joyriding (the temporary taking of an automobile) would constitute theft—the joyrider intends to and does permanently deprive the owner of a temporary interest in the possession of the vehicle. But it is firmly established that joyriding does not constitute theft. (See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, §§ 23, 66, pp. 43, 95.) Indeed, joyriding was separately criminalized precisely because joyriders failed to satisfy the intend-to-deprive-permanently requirement that would be necessary for a theft conviction. (See id., § 23, p. 43 [“The difficulty of convicting a ‘joyrider’ of larceny of an automobile under this rule led to the enactment of statutes imposing less serious punishment for temporary taking.”].)
In effect, what Bell did was joyride in an apartment instead of a car. To the extent that her conduct carries an aura of theft, the reason is that the’ apartment’s owner was in the business of selling temporary possessory interests— leasehold interests—in the apartment. Bell took (a portion of) such an interest, the owner can never get those lost months back, and the rent specified in the lease makes it easy to put a dollar value on the owner’s loss. On reflection, however, none of those circumstances suffices to convert a temporary taking into a theft. A joyride in a rental car—taken directly from the owner’s lot and with the intention never to pay—is still a joyride and not a theft.
The majority offers no persuasive argument to the contrary. It is true that the intent-to-deprive-permanently requirement is not absolutely “inflexible”: If the defendant intends to sell the property back to the owner or claim a reward for “ ‘finding’ ” it or return it for a refund, then the requirement is satisfied. (People v. Davis, supra, 19 Cal.4th 301, 307.) As the majority correctly notes, each of those exceptions involves an intent to appropriate the value of permanent possession of the property—there is, for example, no material difference between an intent to sell the stolen property back to the owner and an intent to sell it to someone else. Nothing of the kind is present here, just as nothing of the kind is present in an ordinary case of joyriding. The record contains no evidence that Bell ever intended to appropriate the value of permanent possession of the apartment.
Likewise, if the defendant intended to retain the property “for so extended a period as to deprive the owner of a major portion of its value or [831]enjoyment,” then the requirement is satisfied. (People v. Avery (2002) 27 Cal.4th 49, 55 [115 Cal.Rptr.2d 403, 38 P.3d 1].) Again, nothing of the kind is present here. Bell signed a 12-month lease, not a 100-year lease, and the record contains no evidence that she intended to retain the apartment for so extended a period as to deprive the owner of a major portion' of its value.
Finally, the majority asserts that my position “confuses what is temporary and what is permanent” because the value of a leasehold interest “in terms of rent, when taken by a thief, is permanent when the thief does not intend to pay rent.” (Maj. opn., ante, at pp. 828-829.) The same can be said, however, for any temporary taking—the putative thief intends to and does deprive the owner permanently of a temporary interest in possession, and that temporary interest has value. (Cf. 2 Witkin & Epstein, Cal. Criminal Law, supra, § 16, p. 36 [the crime of theft “is committed if the thing taken has any value, however slight”].) The majority’s argument thus confirms that, under the majority’s holding, every intent to deprive the owner temporarily of possession satisfies the intent element for theft.
For all of the foregoing reasons, I conclude that Bell’s theft conviction is not supported by substantial evidence. I therefore respectfully dissent from the affirmance of that conviction, but I concur in the affirmance of the remainder of the superior court’s judgment.
Appellant’s petition for review by the Supreme Court was denied November 2, 2011, S195942. Kennard, 1, was of the opinion that the petition should be granted.