In this case we determine whether Penal Code section 1203.044, which requires the imposition of a minimum

Question:

In this case we determine whether Penal Code section 1203.044, which requires the imposition of a minimum county jail sentence as a condition of probation upon conviction of certain theft offenses, applies to the theft of property other than money, including trade secrets. We conclude that it does.

I

   On April 18, 1997, [a] * * * complaint was filed charging defendant with the theft of a trade secret * * *. It was further alleged as a sentence enhancement that the loss exceeded $2.5 million * * *, and as a restriction on the granting of probation that the theft was of an amount exceeding $100,000 within the meaning of sections 1203.044 * * *. Defendant pleaded no contest to the theft charge, * * *. He objected, however, to the potential application of section 1203.044 to his sentence. * * *

   A hearing was held in the superior court on the limited question of whether section 1203.044 applies to the theft of property other than money, including trade secrets. The court concluded that the provision applies to the theft of all property of a certain value, including trade secrets. * * * In accordance with the requirements of section 1203.044, the court suspended imposition of sentence and placed defendant on probation for a period of three years on condition that he serve three months in county jail, with credit for time served of seven days. The court granted a stay of the jail term pending appeal.

   The Court of Appeal reversed, concluding that section 1203.044 applies only to the theft of what it termed ‘‘monetary property.’’ We granted the Attorney General’s petition for review.

II

Defendant stands convicted of theft, specifically a violation of [California statute] which provides:

‘‘(b) Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another, does any of the following:

  1. Steals, takes, carries away, or uses without authorization, a ‘‘trade secret.’’ The statute defines the term ‘‘trade secret’’ as follows: ‘‘information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

  A. Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
  B. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.’’

   [Citation.]
   The trial court determined that section 1203.044 applies to such a theft. This statute, entitled The Economic Crime Law of 1992, requires that a defendant who is convicted of certain theft offenses and is granted probation shall be sentenced to at least 90 days in the county jail as a condition of probation. * * *

   As relevant to the present case, the statute provides: ‘‘This section shall apply only to a defendant convicted of a felony for theft of an amount exceeding fifty thousand dollars ($50,000) in a single transaction or occurrence. This section shall not apply unless the fact that the crime involved the theft of an amount exceeding fifty thousand dollars ($50,000) in a single transaction or occurrence is charged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. * * *

   The Court of Appeal determined that section 1203.044 may not be applied to persons convicted of the theft of trade secrets. It examined the words of the statute and the legislative history of the enactment and, concluding that the statute is at best ambiguous, applied the so-called rule of lenity to give defendant the benefit of the doubt.

* * *

   Our task is one of statutory interpretation and, ‘‘as with any statute, [it] is to ascertain and effectuate legislative intent. [Citations.] We turn first to the words of the statute themselves, recognizing that ‘they generally provide the most reliable indicator of legislative intent.’’’ [Citation.] We examine the meaning of the phrase ‘‘convicted of a felon for theft of an amount exceeding fifty thousand dollars,’’ keeping in mind that the words must be interpreted in context. [Citation.] In outlining the circumstances under which a person given a probationary term for a theft offense must be sentenced to a minimum period in custody * * * does not specify that the theft must involve cash—or that it must involve what is referred to by the Court of Appeal as ‘‘monetary property’’ and by defendant as a ‘‘cash equivalent.’’

   The crime of theft, of course, is not limited to an unlawful taking of money. * * * The crime of theft may involve the theft of trade secrets; indeed, * * * the Legislature specified that the theft of trade secrets is akin to the theft of any other property. * * * In the absence of evidence to the contrary, we may infer that when the Legislature referred in section 1203.044 to persons ‘‘convicted of a felony for theft,’’ it had in mind the general definition of theft, including the broad categories of property that may be the subject of theft. * * *

* * *

   To interpret section 1203.044 as limited to the theft of cash or cash equivalents also would be inconsistent with express legislative intent. The Legislature addressed problems of certain white collar crimes, specifically theft, in enacting section 1203.044. As the Legislature’s own statement of intent discloses, that body intended to remedy the perceived relative unfairness arising from the light probationary sentences meted out to white collar criminals, as well as to provide reliable tools to ensure that victims of white collar criminals receive restitution, and to provide financial support for investigation and prosecution of white collar crime.

   The Legislature declared in enacting section 1203.044: ‘‘[M]ajor economic or ‘white collar’ crime is an increasing threat to California’s economy and the well-being of its citizens. The Legislature intends to deter that crime by ensuring that every offender, without exception, serves at least some time in jail and by requiring the offenders to divert a portion of their future resources to the payment of restitution to their victims.’’

   White collar criminals granted probation too often complete their probation without having compensated their victims or society.

   Probation accompanied by a restitution order is often ineffective because county financial officers are often unaware of the income and assets enjoyed by white collar offenders. * * * Thus, it is the Legislature’s intent that the financial reporting requirements of this act be utilized to achieve satisfactory disclosure to permit an appropriate restitution order.

   White collar criminal investigations and prosecutions are unusually expensive. These high costs sometimes discourage vigorous enforcement of white collar crime laws by local agencies. Thus, it is necessary to require white collar offenders to assist in funding this enforcement activity.

* * *

   We observe that the term ‘‘white collar crime’’ is a relatively broad one and is not limited to losses involving cash or cash equivalents. It generally is defined as ‘‘[a] nonviolent crime usu[ally] involving cheating or dishonesty in commercial matters. Examples include fraud, embezzlement, bribery, and insider trading.’’ [Citation.] The Legislature has applied the term ‘‘white collar crime’’ to fraud and embezzlement * * *, a statute that provides for enhanced prison terms for recidivists committing these offenses when the offense involves a pattern of ‘‘taking of more than one hundred thousand dollars.’’ Like the crime of theft, fraud and embezzlement are not limited to the unlawful acquisition of cash or cash equivalents. [Citations.] Indeed, frequently fraud and embezzlement simply are methods by which a charged theft is accomplished. [Citations.] Because the crime of theft includes a wide range of property and the term ‘‘white collar crime’’ has a broad meaning, we find it improbable that the Legislature intended to address only the theft of cash or cash equivalents * * *. It is far more reasonable to conclude that the Legislature intended the provision to apply to all thefts of property of a particular value. Any other interpretation would permit many white collar thieves to continue to receive light probationary sentences and to evade strict restitution requirements. From the usual meaning of the terms used in section 1202.044, the purpose of the enactment, and the Legislature’s parallel use of the same terms in other statutes, one must conclude that section 1203.044 is not limited to thefts of cash or cash equivalents.

* * *

   For the foregoing reasons, the judgment of the Court of Appeal is reversed.

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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