Defendant’s petty theft conviction for diverting water from a stream on his neighbor’s property was improper. Davis diverted water from a stream on his neighbor’s property into a tank from which he irrigated his marijuana field. Davis was convicted of a number of misdemeanors, including trespass, diverting the natural course of a stream, and petty theft. The appellate division affirmed and the Court of Appeal ordered the case transferred solely on the issue of whether Davis could be convicted of petty theft of water. Held: Petty theft conviction reversed. Larceny requires there be a taking of personal property owned by another. Here, the prosecutor relied on the theory that the water Davis took from the stream belonged to the People of the State of California and the trial court instructed the jury to that effect. However, the state does not have a possessory interest in the water. (See State of California v. Superior Court (2000) 78 Cal.App.4th 1019.) It holds the water and other public resources in a trust and does not have any proprietary ownership in them. Natural resources “do not have any owner until lawfully captured, at which point they become the personal property of the captor.” Although stealing natural resources that another has lawfully captured is larceny, Davis’ neighbor never captured the water. The Court of Appeal also disagreed with the Attorney General’s alternative theory based on Penal Code section 495, which provides that severing any fixture or part of reality and taking it is larceny. Because there was no evidence that Davis’ neighbor captured the water, there was no evidence of a severance from the neighbor’s realty. As a result, “a possessory interest superior to defendant did not exist when he diverted the water from the [neighbor’s] realty.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C080545.PDF