Section 1203.044 of the California Penal Code

Section 1203.044, subdivision (a) provides in relevant part: "This section shall apply only to a defendant convicted of a felony for theft of an amount exceeding fifty thousand dollars ($ 50,000) in a single transaction or occurrence. This section shall not apply unless the fact that the crime involved the theft of an amount exceeding fifty thousand dollars ($ 50,000) in a single transaction or occurrence is charged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." "Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . ." (Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735, 248 Cal. Rptr. 115, 755 P.2d 299, internal citations omitted.) The word "amount" is defined as "the total number or quantity" and/or "a principal sum and interest on it." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 39.) The only "number," "quantity," or "sum" designated in subdivision (a) is described in "dollars." There is no specific reference to other property to which the subdivision might apply. One could argue that there is no language in the subdivision that could reasonably be construed as including other kinds of property. Phrasing such as, "property taken is of a value exceeding" or "property worth more than" would have had such an effect, but is not present. In construing a statute the function of a court is to declare "what is in terms or in substance contained therein, not to insert what has been omitted." (Code Civ. Proc., 1858; Williams v. Superior Court (1993) 5 Cal. 4th 337, 357, 852 P.2d 377.) The language of other subdivisions within the statute itself supports the view that the Legislature intended section 1203.044 to apply only to monetary theft. For instance, subdivision (j) of the statute provides for the disclosure of the assets belonging to a defendant convicted of theft of an amount exceeding $ 50,000. Subdivision (j)(2) requires the defendant to submit a statement including "any item of personal property worth more than three thousand dollars ($ 3,000) in which the defendant has any interest." Subdivision (j)(3) requires disclosure of all domestic and foreign assets of "a value over three thousand dollars ($ 3,000)" and subdivision (j)(12) the disclosure of "all debts in excess of three thousand dollars ($ 3,000) owed to any person or entity." Subdivision (j)(15) requires disclosure of all sales, transfers, assignments, quitclaims, conveyances, or encumbrances of any interest in real or personal property "of a value exceeding three thousand dollars ($ 3,000)" made by the defendant. Subdivision (o) of the statute requires the defendant to report the source and "value of the money or real or personal property received" during the term of probation. The phrasing in these subdivisions establishes that the Legislature knew how to make the distinction between monetary property and other property where its worth or value would be at issue and did so in section 1203.044. The Penal Code is also replete with references to property classified according to its value. (See e.g., 487, subd. (a) [grand theft is committed when the "personal property taken is of a value exceeding four hundred dollars"]; 487e [theft of a dog "which is of a value exceeding four hundred dollars" is grand theft]; 496b [possession of stolen library books with "the value of more than fifty dollars" constitutes first-degree receipt of stolen property]; 502, subd. (d)(2)(A)&(B) [punishment for unauthorized use of computer services where "value of the computer services" is above or below four hundred dollars]; 1202.4, subd. (f)(3)(A) [restitution in a dollar amount sufficient to reimburse victim for "payment for the value of stolen or damaged property"]; 1203.048, subd. (a) [probation denied for computer or telephonic crimes "involving the taking of or damage to property with a value exceeding one hundred thousand dollars"].) On the other hand, the statute applies to defendants "convicted of a felony for theft of an amount exceeding . . . $ 50,000." The phrase "a felony for theft" might connote any felony that involves any theft. a theft is by dictionary definition the unlawful taking of property (Merriam-Webster's Collegiate Dict., supra, at p. 1222); i.e., anything of value, be it money or other personal property. Thus, the phrase "felony for theft" could be construed to reference any of the myriad statutes that proscribe all manner of theft in all their various permutations from embezzlement to car theft to trade secret theft. Consonant with such a construction, the phrase "of any amount exceeding fifty thousand dollars" would serve to narrow the breadth of the prior phrase by limiting it to large thefts.