P v. Aguilera (2nd Dist., Div.4): Taking Your Wife's Cellphone (Even if You Bought it and Pay the Bill) Can Be a PC 211

As a hook for this post, I begin with some hypothetical fact patterns.

[1] A married heterosexual couple goes out to dinner.  Wife forgets her cellphone at home.  During dinner the couple gets into a heated argument.  Wife tells husband to call her a cab to go home.  Husband refuses.  Wife grabs her husband's arm and reaches into his jacket pocket to get the phone.  As she is leaving with the phone to go outside and call a cab, husband grabs her arm in an attempt to prevent her from leaving with his phone.  Wife struggles free, goes outside, and calls a cab.  Husband is currently unemployed.  Wife purchased both their cell phones and pays the monthly bill.
    Q:  Can Wife be convicted of a strong armed robbery and sent to prison for five years?

[2]  A married same-sex couple, Chris and Pat, purchase two cars after their wedding, a Honda that Chris mostly uses and a Volvo that Pat mostly uses.  Pat finds out Chris is a serial cheater and has been lying to Pat for the last four years.  Pat decides to leave, for good.  Pat packs up the Volvo and leaves for Colorado to start a new life, having no intent to ever return.
    Q:  Can Pat be convicted for VC 10851 (aka GTA) and jailed for three years?

[3]  A jilted spouse discovers her husband has been cheating on her.  She had recently given husband three new Armani suits for him as a birthday present, purchased with community funds.  Out of spite, she cuts up the suits and leaves them on the front lawn.
    Q:  Can jilted spouse be convicted for felony vandalism and jailed for three years?

According to California's appellate courts, the answers to [1], [2], and [3] are all "yes".

These hypothetical fact patterns, like the opinion here, concern theft within the context of community property, property for which two people each share an undivided half interest.  

Mr. Aguilera got into it with his wife after she obtained a restraining order against him.  He chased her down and demanded her phone and purse, eventually breaking the window of her car, choking her, and grabbing her phone.  Aguilera then took off running with the phone, which he had recently purchased for his wife, and for which he paid the bill.  He was found a few blocks away, the police arrested him, and his wife got the phone back.  The State charged Aguilera with robbery, and a jury convicted. A Second District panel affirms the conviction.

The first issue to be addressed is how can Aguilera steal his own property?  The court says that because the property is only really 1/2 his (and 1/2 his wife's), it is possible for Aguilera to steal his wife's half of the phone.  Okay, but how do you determine whether in taking the phone for the short time he did, he was denying his wife her 1/2 ownership interest in the phone or just asserting his legal, 1/2 ownership interest in the phone?  It is community property after all, each spouses interest is equal.  If he took the phone with the intent to break it or keep it forever, it would be more clear (see hypo [2] above), but doesn't Aguilera, as 1/2 owner have a right to 1/2 the economic value of the phone (which is its use as a phone)?  This the panel doesn't ask, or hence, answer this question.

Aguilera then argues that he cannot be convicted of robbery for the phone because robbery is a crime of theft and theft requires an intent to permanently deprive the owner of the property. Aguilar says the phone is community property and he did not have an intent to permanently deprive his wife of her ownership interest in the phone, only the intent to take it from her for a short period of time (perhaps until he could convince her to not use it to call the police on him).  The panel holds that sometimes an intent to "temporarily deprive" satisfies the "permanently deprive" requirement.  

This unworkable holding has its roots in an excerebrose opinion by the California Supreme Court in which Justice Chin created his own statutory cannon, non secundum litteram, to hold that the word "permanently" also meant "temporarily" (I'm not kidding) to the consequence that a defendant's out-of-state prior constituted a strike.  P v. Avery 27 Cal. 4th 49.   In doing so, the good justice was adamant that words in a statute should not be interpreted "literally" (again, not kidding).  "Literally" means "in a manner that accords with the usual or basic sense of the words, without metaphor or allegory".  So, apparently utilizing some other undisclosed literary device, Avery held that theft, which requires "an intent to permanently deprive the owner of her property" can be committed by someone who only harbors an intent to "temporarily deprive the owner of her property" if that amounts to an "unreasonable amount of time" that "deprives the owner of a major portion of its value or enjoyment".

Using this reasoning, the panel affirms the conviction.  But again logic again leads the reader to note that wife can only be deprived of her interest, which is 1/2.  So Aguilar must have had the intent to keep the phone for some unreasonable amount of time that would deprive wife of a major portion of her interest in the phone's value.  So would that be 1/4 of the total?

As I asserted above, this holding is unworkable in practice.  If I hog the remote continually, do I deprive my wife a major portion of the value of our TV (community property)?  If the TV is a really nice one, is it grand theft?

The more restrained and workable rule was quoted, but disregarded.

     [The vehicle] is indivisible and its use by one spouse necessarily denies its use to the other. The decision to temporarily take sole possession of a community property vehicle may be based on agreement, misunderstanding or a peevish desire to deny temporarily, for whatever reason, use of the vehicle to the other. Still, in taking the vehicle, even with the intent to temporarily deprive a spouse of its use, the actor does not exceed his or her property right and the problem is properly viewed as a domestic and not a criminal one.(Llamas, supra, 51 Cal.App.4th at p. 1739.)

None of this is to say Aguilera did not commit serious crimes against his wife for which he could rightly have been convicted.  But in eschewing all pragmatism to affirm a robbery conviction, this panel, IMEO, erred.