Could you please help me with this appealat brief (structure…
Could you please help me...
Could you please help me with this appealat brief (structure and insert if needed). I wrote it and have to put it in to those 7 points.
A brief is made up of:
1. Table of Contents: Outline of the major components
2. Table of Authorities: Lists all the authorities
3. Statement of the Case: Summary of the procedural history of the dispute and essential facts of the case
4. Summary of the Argument: major points in the brief are summarized
5. Argument: attorney explains legal position of the client
6. Conclusion: what action the attorney is asking the appellate court to take
7. Appendix: contains excerpts from statutes or other primary authority
What I wrote so far: Petty Theft, under California Penal Code Sections 486, 487(a) and 488, is defined as, anything other than "When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)...."
The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. (See, e.g., People v. Earle (1963) 222 Cal. App. 2d 476, 477-478 [35 Cal. Rptr. 265]; People v. Edwards (1925) 72 Cal. App. 102, 112-116 [236 P. 944]; CALJIC No. 14.02; Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 292-335 (hereafter Perkins).)
Here, because Kant purchased the Hoover's beans, rather than taking them by trespass, the state cannot prove a trespassory taking at this point in the sequence of events, so Kant is not guilty of petty theft.
The intent to steal required for conviction of theft by larceny is an intent to deprive the owner permanently of possession of the property. ( People v. Brown (1894) 105 Cal. 66, 69 [38 P. 518]; People v. Jaso (1970) 4 Cal. App. 3d 767, 771-772 [84 Cal. Rptr. 567]; People v. Turner (1968) 267 Cal. App. 2d 440, 444 [73 Cal. Rptr. 263, 38 A.L.R.3d 940].)
When Kant returned to the store and took the Handel's beans from the shelf, he did so with the intent to exchange them for the Hoover's beans. Here again, the state cannot prove Kant had an intent to permanently deprive the store of the beans, because grocery stores routinely accept exchanges of unopened canned merchandise, and had Kant actually asked for the store's consent, it would have almost certainly been granted without question. Industry customs would vitiate any intent to permanently deprive, and Kant would be found not guilty of theft.
Finally, when Kant placed the Hoover's beans to the shopping cart, in an attempt to effect an exchange for the Handel's beans his intent was to return the beans for an exchange of Handel's beans (there are not facts suggesting a difference in price between the two products, so we shall assume that they are of equal price) -- what Kant actually did was to donate the beans to a charitable food drive.
Arguably, the act of placing the beans into the community food drive cart could be deemed to have permanently deprived Bilmart of its case of Hoover's beans. However, it is well established that without a "donative intent," no gift can be made. In re Marriage of Jacobs (Cal. App. 4th Dist. 1982) 128 Cal. App. 3d 273, 275. And, since Kant believed that the cart was filled with store returns, he not only had no intent to permanently deprive Bilmart of the beans exchange -- but also no donative intent to make a contribution to a food drive.
Therefore, based upon every legal theory, Kant is not guilty of petty theft, and his conviction must be reversed.