Calif. Appeals Court Tosses iPhone Theft Charge as 'Temporary Taking'

PHOTO: A man holds an Apple iPhone 4, Dec. 16, 2010.

An appellate court in Contra Costa County, Calif., has discovered a previously unknown pastime: cellphone joyriding.

It looks a lot like theft.

It involves a stranger taking violent possession of an owner's phone against the owner's will. It involves the owner being punched repeatedly in the head by the stranger. But, found the court, this isn't theft. It's "temporary taking"--something far more akin to a kid borrowing your car for a joyride.

The facts of the case, according to the appellate court's decision, filed September 26, are these:

"On December 20, 2010, Matthew Cardoza was standing outside the hospital where he worked, taking a 10 minute break. He was using his new Apple iPhone 4 cell phone to exchange text messages with his fiancee."

He had just hit "send" on his last text when up came an agitated man--a stranger to Cardoza--who said, according to the court filing, "Hey, man, let me get that phone."

The stranger took the phone out of Cardoza's hands and made off with it.

Cardoza gave chase, grabbed the man by the back of his shirt, spun him around and grabbed for the phone. They struggled.

During the struggle, the stranger yelled, "Give me the phone, give me the phone. I'll hurt you. Give me the phone." He punched Cardoza in the head several times.

Cardoza got the phone back, after which the man said, "I'll pay you, I'll pay you. I just want the phone." Cardoza told the man he didn't want his money and asked him please to leave him alone. The man tried to apologize and told Cardoza he needed to get help because his mother "had just got her house on fire."

The violent stranger was Kurt Carr.

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It had already been a full day for Carr before the incident with Cardoza. That same morning, the mother of his fiancee had been driving him to a doctor's appointment at the hospital when the two had gotten into an argument. Carr decided to jump out of the car while it was still moving, according to the filing.

"He felt he had to call his fiancee immediately to tell her about his fight with her mother," according to court papers. He already was agitated and distraught because, according to the court filing, his mother's house had burned down a few days previously, "and he believed the fire was caused by faulty repair work he had done."

Carr went looking for a phone, and saw Cardoza on his new iPhone. "Man, let me get the phone. Let me use your phone....Can I use your phone?" he said to Cardoza, according to the filing.

Cardoza told him no. Karr asked again, and was again refused. The struggle for the phone then ensued.

The court found that in order to prove theft, the prosecution would had have to have shown that "[Karr] intended to deprive [Cardoza] of [the phone] permanently or to remove it from [Cardoza's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."

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As for "permanently," the California Supreme Court previously had decreed, according to the appellate court, that permanently didn't have to be all that permanent. "Our Supreme Court has ruled...that this intent requirement is flexible and not to be taken literally."

As for "for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property," said the court, the major-ness of the deprivation depends on circumstance.

"Taking cut flowers from a florist without consent, with intent to return them in a week" and "Taking a neighbor's lawn mower without consent for the summer, with intent to return it in the fall" would both qualify as theft, because the deprivation was major, the court wrote in its decision.

"Much depends," said the court, "upon the nature of the property and its expected useful life...It is one thing to take another's fresh strawberries with the intent to return them two weeks later, another thing to take his diamond ring with a like intention."

Which brings us to joyriding.

Joyriding--the temporary taking of another's car--is not theft, according to the court, because the deprivation is only temporary (and the car is non-perishable). Likewise, one kid's hiding another kid's bicycle overnight, in order to "get even" for the owner having teased the hider, is not theft but instead temporary taking.

Returning now to Cardoza and his iPhone, the court found that, "the phone was neither perishable in nature nor good for only seasonal use." Further, that Karr's taking of the phone was temporary, done in order for him to make a call and not to deprive Cardoza permanently of its use (nor to deprive Cardoza of a major portion of its value and enjoyment).

"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," found the court.

A Superior Court jury acquitted Carr of robbery, but convicted him of grand theft. He received a sentence of eight months of home confinement. The appeals court unanimously reversed that decision and vacated the sentence.

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