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  1. #1
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    Jun 2011
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    Default Stolen Items Pawned

    My question involves criminal law for the state of: california

    I recently had some items stolen then sold to a pawn shop. The person who stole them was arrested and is currently in jail for grand theft. The person was arrested due to the items being tracked down to the local pawn shop. We Then were informed by the police that if we wanted the items back we had to pay the pawnshop the amount of money the thief got for our stolen property. Is this legal? I know its a crime to buy or sell stolen property so how could they get away with it.

  2. #2
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    Default Re: Stolen Items Pawned

    You haven't told us anything about the items, or how the pawn shop would have been able to identify them as stolen at the time they were pawned. Please fill us in.

    Some items are easily identified or associated with an owner, such that if your electronic items were stolen and you reported them to the police along with serial numbers it would be possible for the pawn shop to identify the items as stolen. Other items are fungible - you can't tell one from another. Many others fall somewhere in between.

    Have you contacted your insurance company to see if they'll cover the pawn shop's fees?

  3. #3
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    Sep 2005
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    Default Re: Stolen Items Pawned

    Quote Quoting djcodine
    View Post
    My question involves criminal law for the state of: california

    I recently had some items stolen then sold to a pawn shop. The person who stole them was arrested and is currently in jail for grand theft. The person was arrested due to the items being tracked down to the local pawn shop. We Then were informed by the police that if we wanted the items back we had to pay the pawnshop the amount of money the thief got for our stolen property. Is this legal? I know its a crime to buy or sell stolen property so how could they get away with it.
    It is a crime to KNOWINGLY buy or sell stolen items. The pawn shop likely did not know the items were stolen when they purchased them.

    My question would be why the police did not seize the items in the first place. Had they seized the items, and they could be shown to be yours, they could have been returned to you.

    I am not sure under what statute the police argued that the pawnbroker should be paid by the victim, because I cannot find it in 21200 et seq. of the state Financial Code that regulates Pawnbrokers, or section 1411 of the Penal Code. If there are relevant sections of the Civil Code, I am also not familiar with them.

    As suggested, you might want to check with your homeowners' or renters' insurance to see if you might be covered.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

  4. #4
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    Default Re: Stolen Items Pawned

    I suspect that it's less a matter of what the law compels, and that the pawn broker has voluntarily offered to return them as long as he breaks even. It's a fair question though, if the items were traceable to a theft, why the police didn't seize the items.
    Quote Quoting People v. Hernandez (2009) 172 Cal. App. 4th 715
    Under California law, a person pawning property pledges it, transferring temporary possession of the property and a security interest in it to the pawnbroker. (Fin. Code, 21000 [a pawnbroker receives goods "in pledge as security for a loan"]; People v. MacArthur (2006) 142 Cal.App.4th 275, 281 [47 Cal.Rptr.3d 736].) If the pledgor fails to redeem the "pledged property" by repaying the loan and any applicable charges within the specified loan period, title to the property passes to the pawnbroker and the property becomes "vested property." (Fin. Code, 21002, 21201.)

    Here, the record does not reflect the status of the property when the court issued its ex parte order. At a minimum, however, the pawnbrokers had a possessory interest in the pawned property entitling them to due process protection. (Fuentes, supra, 407 U.S. at p. 86, quoting Boddie v. Connecticut (1971) 401 U.S. 371, 379 [28 L.Ed.2d 113, 91 S.Ct. 780] [right to due process extends to "any significant property interest"]; G & G Jewelry, Inc. v. City of Oakland (9th Cir. 1993) 989 F.2d 1093, 1098 (G & G Jewelry) ["[P]awnbroker, as pledgee, has a legitimate possessory interest in the property as against the rest of the world except the person having title to the property."].)

    (7) We reject the People's contention that the pawnbrokers lost any right to claim ownership of the property when defendants admitted stealing the property. While it is generally true that a thief cannot pass title to stolen property and that the true owner can reclaim the property from whoever has possession (Suburban Motors, Inc. v. State Farm Mut. Auto. Ins. Co. (1990) 218 Cal.App.3d 1354, 1359-1361 [268 Cal.Rptr. 16]), the People's argument improperly assumes that the individuals claiming ownership were the lawful owners of the property. However, a crime victim claiming to be the true owner of stolen property might be mistaken or there could be multiple crime victims claiming to be the lawful owner of the same piece of property. Until there is a judicial determination of any competing claims, a pawnbroker's possessory interest in the property constitutes a sufficient property interest warranting due process protection.

    In any event, "[t]he right to be heard does not depend upon an advance showing that one will surely prevail at the hearing." (Fuentes, supra, 407 U.S. at p. 87; Wolfenbarger v. Williams (10th Cir. 1985) 774 F.2d 358, 361 [issue of whether pawnbroker will lose rights in stolen property is irrelevant to due process claim].) Stated differently, the fact that a pawnbroker's claim to the property is disputed does not negate the pawnbroker's property interest or the pawnbroker's right to procedural safeguards mandated by the due process clauses of the federal and state Constitutions. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 7.)

    (8) Accordingly, the ex parte order giving the police or the previously identified crime victims the property must be reversed because it violated the pawnbrokers' procedural due process right to notice and an opportunity to be heard.

    Finally, the ex parte order completely disregarded the statutory scheme pertaining to property in possession of a pawnbroker placed on hold by law enforcement. Where, as here, property reported as stolen is no longer needed for a criminal investigation, section 21647 requires the law enforcement agency that placed the hold on the property to inform the person who reported the stolen property that she must take "action to recover the property from the pawnbroker" within 60 days of the mailing of the notice and if this is not done the pawnbroker can treat the property as other property received in the ordinary course of business. ( 21647, subd. (c)(3).) Nothing in section 21647 authorizes a court, the People or law enforcement to take the property from the pawnbroker and give it to the person claiming ownership. Rather, the statute expressly indicates that the person who reported the property as stolen must take some action to recover the property from the pawnbroker after receiving the required notice. (G & G Jewelry, supra, 989 F.2d at p. 1096 ["The statutory procedures do not purport to resolve ownership of the property; they only dictate which party is entitled to possess the property until ownership is resolved by negotiation, agreement, or by some sort of civil litigation."].)

    With this said, we see no reason why the criminal court cannot provide a venue for the resolution of this issue or why law enforcement cannot lend assistance to crime victims in the recovery of their property. One possible way to settle the matter would be for law enforcement to seize the property that it placed on hold (Fin. Code, 21206.8), thereby allowing the issue to be resolved via the existing statutory procedures that specifically provide for the return of stolen property to its victim-owner by the court having jurisdiction over the criminal matter (Pen. Code, 1407 et seq. & 679.02, subd. (a)(9) [crime victims have a statutory right to "expeditious return of his or her property which has allegedly been stolen or embezzled, when it is no longer needed as evidence, as provided by Chapter 12 (commencing with Section 1407) and Chapter 13 (commencing with Section 1417) of Title 10 of Part 2"])

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