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People v. Kozlowski3/4/2002
le-in an extortion, the property is taken with the victim's consent, while in a robbery, the property is taken against the victim's will. (People v. Chacon (1995) 37 Cal.App.4th 52, 63.)
Cases and statutes define the term "property" in the context of theft-based offenses as the exclusive right to use or possess a thing or the exclusive ownership of a thing. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1250-1251 (Kwok) [taking of lock to make unauthorized copy of key was theft]; People v. Sadowski (1984) 155 Cal.App.3d 332, 335 [cat as property for purposes of theft]; see Civ. Code, § 654.) The term is all-embracing, including every intangible benefit and prerogative susceptible of possession or disposition. (Kwok, supra, 63 Cal.App.4th at p. 1251.) The right to own property implies the right to possess or use a thing to the exclusion of others. (State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1027.) With these general concepts in mind, we turn to the specific issue before us-whether a PIN is "property" for purposes of extortion.
A PIN is a code number that operates as a means of account access. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235.) We may take judicial notice of the common knowledge that a PIN code is more valuable if not disclosed to others-or, put another way, if it is exclusively possessed. (See Evid. Code, §§ 452, subd. (g), 459, subd. (a).) In like manner, the means to bank account access is an intangible benefit susceptible of possession. (See Kwok, supra, 63 Cal.App.4th at p. 1251.) Thus, it may reasonably be said that a PIN code is property because it implies the right to use that access code-and to access the funds in the related bank account by means of that code. (See State of California v. Superior Court, supra, 78 Cal.App.4th at p. 1027.) Operating as it does as a means of account access, a PIN code can be characterized as intangible property. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235.)
Kozlowski and Gatson argue that a PIN code is no more than a means to obtain property-merely a series of numbers that serves as an access device. They contend that it is a condition or concept incidental to the transfer of property, but not tangible property that can be owned or exclusively possessed in and of itself. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235; see also 18 U.S.C. § 1029(e)(1) [defining PIN as access device for purposes of federal criminal fraud provisions]; People v. Parker (1963) 217 Cal.App.2d 422, 426-427 [receiving stolen property conviction proper when defendant obtained confidential telephone directory supplements offering new telephone listings, copied and returned them]; but see People v. Dolbeer (1963) 214 Cal.App.2d 619, 622-624 [finding paper listing information was property, but suggesting in dicta that information alone might not be property].)
The gist of this claim of error appears to be that a PIN code cannot be property for purposes of extortion because it is not tangible. However, the term "property" in the Penal Code specifically includes within its definition intangible property. (See § 7, subd. 12.) A thing in action is a right to recover money or other personal property by a judicial proceeding, such as a right of action for personal injury, breach of contract or fraud. (Civ. Code, § 953; see People v. Baker, supra, 88 Cal.App.3d at p. 119.) Thus, the right to take and prosecute an appeal has been held to be property within the meaning of our extortion statute. (People v. Cadman (1881) 57 Cal. 562, 563-564; People v. Baker, supra, 88 Cal.App.3d at p. 119.) The statutory right to file a protest with the Alcoholic Beverage Control Board is also considered property within the me
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