Appropriation of lost property (Pen. Code, § 485) is a general intent crime. In this case of first impression the court considered whether appropriation of lost property is a specific or general intent crime. The court reviewed the statute in the context of the entire statutory scheme which addresses various forms of theft. It compared this statute to section 484, which defines various “felonious takings” as theft. In section 484, the use of the word “felonious” has been held to import the common law specific intent requirement. But not all of the theft offenses in the scheme have a specific intent requirement. (See, e.g., Pen. Code, § 484c.) The only mental state mentioned in section 485 is the perpetrator’s “knowledge.” Also, the Legislature has made it clear that section 485 is a unique species of theft distinct from those in section 484 because it has given both the court and the prosecutor discretion to treat the former as an infraction, whereas the discretion to treat the latter as an infraction is only vested with the prosecutor. This more lenient treatment for section 485 reflects the Legislature’s acknowledgment that it does not have the same elements as a violation of section 484. (The dissent concluded the crime was a specific intent crime.)
Any error in failing to give a mistake of fact instruction was harmless. QuickSilver technology company shipped two circuit boards, but they were lost in transit. Another company purchased the boards from a dumpster diver and sold them to an individual on E-Bay for about $100. The individual contacted QuickSilver for a manual to learn more about the boards, and learned from an employee that they were lost property valued at about $24,000. The company that sold the individual the boards on E-Bay enlisted appellant’s help in getting the boards back to QuickSilver and obtaining a reward for the purchaser. Instead, appellant told QuickSilver he was “sitting on a gold mine” and sought payment for return of the boards. At his trial for appropriation of lost property, appellant testified he knew QuickSilver had been paid by their insurance company, but did not believe they would repay the insurance company, and so was trying to set them up for insurance fraud. Based on this testimony he requested a mistake of fact instruction, which the trial court denied. The court held failure to give the instruction was harmless given that he provided no explanation as to why it was necessary to try to extract large sums of cash from QuickSilver in order to report suspected insurance fraud to the Department of Insurance.