Guam • Lex Graph

Chapter 43

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GCA Title 9, Chapter 43

Guam Code > Title 9 > Chapter 43

Article 1. Definitions.

  • Article 2. Retail Theft.
  • Article 3. Anti-Skimming Act.

ARTICLE 1

DEFINITIONS

  • § 43.10. Definitions.
  • § 43.15. Theft a Single Offense.
  • § 43.20. Theft; Defined & Punishment Classified.
  • § 43.21. Theft of Utilities.
  • § 43.25. Defenses; Conditions Upon Same.
  • § 43.30. Theft of Property; Defined.
  • § 43.31. Crime Against the Community; Defined and Punishment.
  • § 43.35. Theft by Deception; Defined.
  • § 43.40. Theft by Threatening; Defined; Defense.
  • § 43.45. Theft of Property Lost, Mislaid or Delivered by Mistake; Defined.
  • § 43.50. Theft by Receiving Stolen Property; Defined.
  • § 43.51. Theft of Utilities.
  • § 43.55. Theft of Services; Defined.
  • § 43.56. Unauthorized Reception of Cable Services.
  • § 43.60. Theft of Property Held in Trust; Defined.
  • § 43.65. Unauthorized Use of Vehicle: Defined; Punished; Defense.
  • § 43.70. Reimbursement to Owner of Stolen Livestock.
  • § 43.75. Theft of Dog or Cat, When a Felony of the Second Degree. COMMENT: §§ 43.10 through 43.65, as originally enacted, are based upon §§ 2900 through 2909 found in the California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project 69-88 (tent. draft No. 3, July 1969). Portions of the staff comments prepared in conjunction with the latter provisions are incorporated into these comments where appropriate.

§ 43.10. Definitions.

As used in this Chapter, unless a different meaning plainly is required: (a) Deprive means: (1) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (2) to abandon the property under circumstances amounting to a reckless exposure to loss. (b) Movable Property means property the location of which can be changed, including things growing on, or affixed to, or found in land, and documents although the rights represented thereby have no physical location. Immovable Property is all other property. (c) Obtain means: (1) in relation to property, to bring about a transfer or purported transfer of legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof. (d) Property means anything of value, including real estate, tangible and intangible personal property, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power, trade secrets, or agricultural product, which includes floriculture, horticulture, viticulture, aquaculture, forestry products and commodities, shrubbery, nuts, coffee, seeds, or other farm or plantation products or commodities grown by or raised by a bona fide farmer as defined by 5 GCA§ 60354(f). (e) Property of Another includes property in which any person other than the defendant has an interest which the defendant is not privileged to infringe, regardless of the fact

that the defendant also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the defendant shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement. (f) Trade Secret means the whole or any portion of phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and is not generally available to the public, and which gives one who uses it an advantage over actual or potential competitors who do not know of or use the trade secret, or the contents of private and unpublished records used in the business of examining, certifying or insuring titles to real property. Proof that the owner takes measures to prevent information from becoming available to persons other than those selected by the owner to have access thereto for limited purposes gives rise to an inference that the information is secret. SOURCE: G.P.C. §§ 7(10), (12), 491, 494-495, 510; M.P.C. 223.0; *Cal. § 2900 (T.D.3 1969); Cal. § 1000 (1971); Mass. ch. 266, § 1; N.J. 2C:201. Subsection (d) amended by P.L. 36-010-2 (Apr. 9, 2021). CROSS-REFERENCES: § 34.60 - Criminal Mischief; § 46.55 - Secured Creditors; § 43.30 - Public Officials. COMMENT: Most of the definitions are substantially those of Model Code, § 223.0. Trade Secret is an amalgam of California Penal Code §§ 496c and 499c. A Trade Secret @ has been added to the list of property subject to theft.

§ 43.15. Theft a Single Offense.

Conduct denominated theft in this Chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this Chapter, notwithstanding the specification of a different manner in the accusatory pleading, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice of by surprise.

SOURCE: G.P.C. § 490a; M.P.C. § 223.1(1); *Cal. § 2901(1) (T.D.3 1969); Cal. § 1010 (1971); Mass. ch. 266, § 17(d); N.J. § 2C:20-2(a). COMMENT: Former Guam Penal Code § 490a effected only a substitution of the term A theft @ for larceny, embezzlement, etc. The local courts have not completely consolidated the offenses and an indictment, or information, which charges one method of theft which was at variance with the proof could prove fatal to the case. § 43.15 corrects this deficiency in favor of the prosecution as specifically stating that, where the accusation varies from the proof, the case is not to be dismissed but is only to be delayed, or other relief granted, so that the defendant is not prejudiced. This Section makes very clear that there is only one offense of theft, no matter how it is committed.

§ 43.20. Theft; Defined & Punishment Classified.

(a) Theft constitutes a felony of the second degree if the amount involved exceeds One Thousand Five Hundred Dollars (1,500.00) but exceeds Five Hundred Dollars ($500.00) or if the property stolen is a firearm or motorized vehicle other than those set forth in Subsection (a) of this Section, or if the theft is through an unauthorized electrical connection

(c) Theft not constituting a felony of the second or third degree is a misdemeanor if the amount involved exceeds Fifty Dollars ($50) or if the property stolen is a credit card or if the property was taken from the person or by extortion. (d) Theft not constituting a felony of the second or third degree or a misdemeanor is a petty misdemeanor. (e) The amount involved in a theft shall be the fair market value of the property or services which the defendant stole or attempted to steal. Whether or not they have been issued or delivered, written instruments not having a readily ascertained market value shall be evaluated as follows: (1) The value of an instrument constituting an evidence of a debt, such as a check, draft or promissory note, shall be the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied. (2) The value of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. (f) Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons or amount [sic] involved in thefts by a servant, agent or employee from his principal or employer in any period of twelve (12) consecutive months, may be aggregated in determining the grade of the offense. SOURCE: Enacted 1977; repealed and reenacted by P.L. 14-143, eff. 10/01/78. Subsection (b) repealed by P.L. 24-31;3. COURT DECISIONS: D.C.GUAM:APP.DIV. 1983 It is permissible, in determining the value of items stolen, to use an expert in (this case) pipe dealings to determine the value of the pipe stolen based upon photographs and a description of the stolen pipe given by another witness. People v. Dela Cruz, D.C. Cr. 82-008A.

§ 43.21. Definition of Unauthorized Electrical Connections or Illegal Power Hook-Ups.

An illegal power hook-up is any connection to power lines which belong to the government of Guam, that is made without the prior written permission of the Guam Power Authority, or any power hook-up from a direct power line which bypasses or hinders meter registration. The conditions include, but are not limited to:

  • (a) External jumpers;
  • (b) Bypass on meter;
  • (c) Tap ahead of electric meter;
  • (d) Inverted (electric) or reversed substitution meter;
  • (e) Manipulation of meter dials;
  • (f) Foreign materials inside electric meter;
  • (g) Open potential line;
  • (h) Unmetered theft of service;
  • (i) Metered theft of service; or
  • (j) Any other unauthorized or illegal hook-up. SOURCE: Added by P.L. 24-31;2.

§ 43.25. Defenses; Conditions Upon Same.

(a) It is an affirmative defense to prosecution for theft that the defendant: (1) was unaware that the property or service was that of another; or (2) acted in good faith under a claim of right to the property or service involved or that he had a claim of right to acquire or dispose of it as he did. (b) It is no defense that theft was from the defendant’s spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together. SOURCE: G.P.C. § 511; M.P.C. § 223.1(3), (4); *Cal. § 2901(3), (4) (T.D.3 1969); Cal. § 1012 (1971); Mass. ch. 266, § 17(8); N.J. § 2C:202(c), (d). CROSS-REFERENCES: California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project 76-77 (tent. draft No. 3, July 1969).

COMMENT: § 43.25 substantially restates existing Guam law. The provision of Guam Penal Code § 511 that the claim of right defense is unavailable in embezzlement cases where the defendant had retained property A to off-set or pay demands held against him, @ has not been retained. There is no similar restriction on the claim of right defense under present law if the defendant is charged with common-law larceny or theft by fault pretenses. Of course, as in common law, the claim of right defense who would be available only where the defendant honestly believes that he had the legal right to retain the property as a set-off. Thus, where a defendant took property of another and no right of set-off existed, even if the defendant may have been owed money by the other, no defense would arise under this Section. As with existing law, § 43.25 rejects the common-law rule that unity between husband and wife precludes possibility of theft from a spouse. However, there is no theft of commonly owned property unless the spouses are living apart. This provision will, it is hoped, substantially reduced the risk of theft prosecution following a family quarrel or domestic dispute.

§ 43.30. Theft of Property; Defined.

(a) A person is guilty of theft if he unlawfully takes or obtains or exercises unlawful control over, movable property of another with intent to deprive him thereof. (b) A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with intent to deprive him thereof. SOURCE: G.P.C. §§ 74a, 484, 496, 496a, 499a, 503-510, 545, 653a; See also § 356 (Attempt; 384b); M.P.C. § 223.2; *Cal. § 2902 (T.D.3 1969); Cal. § 1002 (1971); Mass. ch. 266 § 17; N.J. 2C:20-3. CROSS-REFERENCES: § 13.60 - Attempt; § 43.10, Comment. COMMENT: § 43.30 deals with the former offenses of larceny embezzlement and fraudulent conversion. The concept of A unlawful control @ in the case of movable property marks the distinction between attempt and the completed crime and provides a flexible standard for the wide variety of takings constituting theft. The distinction between an attempt and the completed crime is not crucial since the identical range of penalties are provided for attempt by § 13.60. In the case of immovable property, unauthorized occupation of land is not made, but the transfer of an interest by a trustee or other persons is theft if the transfer deprives the real owner of the property, or an interest (such as creating an encumbrance

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