What is the punishment for taking a person’s cellphone from his hand, refusing to give it back and walking off to make a personal call?

A California appellate court in Contra Costa County ruled (pdf) September 26 that there is no penalty, because no crime has been committed. The decision by the three-judge panel reversed a lower-court decision that found Kurt A. Carr had committed grand theft when he took Matthew Cardoza’s iPhone in December 2010 while he was making a call outside a hospital in Martinez where he worked.

Cardoza fought with Carr to get it back and, after getting punched a few times, managed to wrest it away. Carr then offered to pay Cardoza to use the phone, was refused and went into the hospital where an employee allowed him to make a phone call to his fiancée. Carr wanted to call his girlfriend because he had just had an argument with her mother over a recent fire at her home, which Carr feared he may have caused when he did some electrical repair work there.

Police arrived and Carr was arrested. Prosecutors charged him with two counts of robbery, which is theft by force, and grand theft. The jury opted for grand theft and found Carr guilty. The judge sentenced him to eight months of home confinement.

But did Carr really break the law, which defines theft as depriving someone of their property with the intention of permanently keeping it from them? State courts have defined “permanently” in a rather expansive way, saying it depends on the nature of the object taken and the length of time it is taken for.

For instance, in an example cited by the appellate court, taking perishable strawberries for two weeks is theft; taking a diamond ring for that long is not. The key is whether it “might deprive the owner of a major portion of their value and enjoyment.”  

The appellate court said the jury was incorrectly led to believe that taking the phone for any length of time legally constituted theft, and that was wrong. It might be “a tort or a separate crime, [but] it does not meet the definition of larceny,” Justice Maria Rivera wrote for the court in its unanimous decision.

“The phone was neither perishable in nature nor good for only seasonal use,” she wrote. “Taking a phone for temporary use is far more akin to joyriding or taking a bicycle with intent to return it the next day, which do not constitute theft.”

–Ken Broder

To Learn More:

If You Swipe Something, but Plan to Return It, It’s Not Theft (by Bob Egelko, San Francisco Chronicle)

Calif. Appeals Court Tosses iPhone Theft Charge as “Temporary Taking” (by Alan Farnham, ABC News)

The People v. Kurt A. Carr (California Court of Appeal First Appellate District Division Four) (pdf)