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People v. Kozlowski3/4/2002
aning of our extortion law because it is a thing in action. (See People v. Baker, supra, 88 Cal.App.3d at p. 119.) These are all examples of intangible items which are expressly included within the definition of property within the Penal Code. Thus, the fact that a PIN code is intangible property does not preclude a finding that it constitutes property within the meaning of our extortion statute.
Although there are no cases directly on point, we find one involving a house key that persuades us to find that a PIN code is property for purposes of kidnapping for extortion. In Kwok, supra, 63 Cal.App.4th 1236, a defendant was convicted of two counts of residential burglary. He went to his victim's home when he knew she was away, used a code number to open her garage door and entered the garage. The interior of the victim's home could be entered by means of a door inside the garage. Without the victim's knowledge, Kwok removed a lock from this interior door, took it to a locksmith, had a key made for the lock, retained the newly made key and replaced the lock in its original position. A month later, he returned to the home, entered the garage by using the coded garage door opener and entered the unlocked interior door-apparently, without needing to use the key. When the victim returned home, he assaulted her. (Id. at pp. 1240-1245.)
On appeal, Kwok argued that there was insufficient evidence to support the first count of residential burglary-based on his removal of the lock and making a key to fit it. He contended that there was insufficient evidence of an intent to commit a theft or felony at the time of entry. He reasoned that he could not be guilty of the theft of the lock because he had no intent to permanently deprive his victim of her lock-only to remove the lock temporarily in order to make a key that fit it. Implicit in this argument was a second one-that his act of making and retaining an unauthorized key to his victim's home did not itself constitute theft. (Kwok, supra, 63 Cal.App.4th at pp. 1245, 1248-1249.)
The appellate court found little California authority on the question of whether making an unauthorized copy of a key constituted theft, but found persuasive a Wyoming Supreme Court opinion concluding that theft had been committed when the defendant retained a copy of the victim's keys, even though the original keys were returned to the victim. Both courts noted that copying the key deprived the victim of something valuable-in that case, her right to have exclusive access to her home and vehicle. The value of the original key was diminished by the copies that were made and retained because an unwanted person also had access to the home and vehicle. (Kwok, supra, 63 Cal.App.4th at pp. 1249-1250; see Dreiman v. State (Wyo. 1992) 825 P.2d 758, 761.) The California appellate court reasoned that a house key is property. Even if the victim retains other copies of the key, the defendant's unauthorized possession of the stolen key impairs the victim's right of ownership-the exclusive possession and use-of the house. (Kwok, supra, 63 Cal.App.4th at p. 1251.)
Applying Kwok, the People argue that when Kozlowski and Gatson compelled Lisa and Robyn to reveal their PIN codes-in effect, the "key" that "unlocked" their bank accounts and allowed access to their bank funds at an ATM-the victims lost the ability to control access to those funds. For their part, Kozlowski and Gatson counter that Kwok is distinguishable because in that case the defendant made a tangible object-a key-from the article that he took from the victim. We disagree. Our reading of Kwok satisfies us that it is the intangible loss, not the tangible one, that prompted its ruling. In that case, while the house
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