Theft

We all know it is wrong to steal, and that it is against the law. However, it is still a fairly common occurrence in our society. Because of this, stores regularly have "loss-prevention" employees, products have tags that will set off an alarm if not removed before you leave and some products are typically kept behind the counter.

Despite all that, many, if not most, people have probably stolen something from someone or somewhere at some point in their lives. If they are caught, they face criminal prosecution under one of several California Penal Code sections that prohibit theft; which is also sometimes referred to as larceny. Which Penal Code section a person will be prosecuted under depends largely on the item's value or items alleged to have been stolen.

In California, the law traditionally distinguished between two broad categories of theft; petty theft and grand theft. As of 2015, however, the law began to recognize a third category; shoplifting.

Which type of theft a person will be charged with generally depends on the value of the item or items stolen. There are also some types of items that will automatically trigger a grand theft charge. These are firearms, motor vehicles and any item stolen directly off of a person (like a wallet, purse, or any jewelry the person is wearing.)

Types of Theft:

The two most common theft related crimes are petty theft or grand theft. If the item or items are worth $950 or more, then a person will typically be charged with grand theft. If the item or items are worth less that $950, then the person will likely be charged with petty theft. However, there are some other factors that may elevate a charge to grand theft, even if the item's value or items stolen is worth less than $950.

If something is stolen off the victim’s person it will probably be treated as grand theft, no matter the value of the item. This type of theft is called “theft from the person,” a common example of which would be "pick-pocketing," and is a violation of Penal Code Section 487(c). Also, any theft of a firearm or a motor vehicle is considered grand theft, no matter if the gun or vehicle is worth less than $950.

The crime of petty theft is defined in, and prohibited by, California Penal Code section 484, while the crime of grand theft is defined in, and prohibited by, California Penal Code section 487.

As of a few years ago, there is also a third category of theft. After the advent of Proposition 47 in 2015, a new crime was created. It is referred to as misdemeanor shoplifting, and is a violation of Penal Code Section 490.5. This new offense was created to encompass situations where someone entered a store with the intent to steal (which was formerly treated as a felony burglary,) but stole items of less than $950 in value.

To get convicted of any of these three types of theft, the prosecution must prove beyond a reasonable doubt that the defendant intended to permanently deprive the owner of possession of the particular item, and that the defendant physically moved the item at issue.

Specific Examples of Theft:

Petty Theft:

You see someone's skateboard at the bottom of a flight of stairs while its apparent owner is sitting at the top of the stairs, and you jump on it and skate away;
You are in a friend's house, take a video game cartridge they have laying out and put it in your pocket, then leave; or
You are at a movie theatre, in line at the snack bar. When it is your turn to be served, you ask for a tub of popcorn, and while the employee is getting it for you, you lean over the counter and take a candy bar.

Grand Theft:

You break into someone's car, hotwire it and drive away;
You are at a house party. While no one is looking, you go upstairs, and take a pearl necklace out of a jewelry box, put it in your pocket and leave. The necklace is worth $1,000;
Someone is walking in your direction in the street, talking on their mobile phone. As they pass you, you grab their phone out of their hand and run off; and
There is a truck making deliveries to an electronics store. While the driver is filling out paperwork, you go around to the back, and take one of the boxes. You don't know what is inside, but when you get home, you open it and find twelve mini-drones. Each one sells for $100.

Shoplifting:

You go into a store with the intent to steal some clothes. While trying on clothes, you intentionally leave on one of the shirts you were trying on, and put your jacket over it. Then you buy other clothes and leave;
You go into a convenience store, and while the clerk is not looking, you take a candy bar and eat it in the back of the store;
You go into a jewelry store, and ask to try on a bracelet worth $800. While trying it on you ask to see a ring in the display case. As soon as the clerk goes to open the case, you run out of the store; and
You bought some bottles of vitamin supplements from a drug store earlier in the day. You go back to the store later in the day with the receipt. You take the same bottles of supplements you bought earlier off the shelf, and then try to return them for cash using the receipt.

How Does a Prosecutor Prove Theft:

In order for a prosecutor to prove that a defendant committed a theft crime, they must prove the following:

Petty Theft:

(1) The defendant acted to permanently deprive the owner of possession of one or more items; and

(2) The defendant intended to permanently deprive the owner of possession of one or more items; and

(3) The defendant physically moved the item or items.

Grand Theft:

(1) The defendant acted to permanently deprive the owner of possession of one or more items, and

(2) The defendant intended to permanently deprive the owner of possession of one or more items;

(3) The defendant physically moved the item or items;

(4) The item or items had a total value in excess of $950.

Shoplifting:

(1) The defendant acted to permanently deprive the owner of possession of one or more items, and

(2) The defendant intended to permanently deprive the owner of possession of one or more items;

(3) The defendant physically moved the item or items; and

(4) The item or items were taken from a store or similar business, during it operating hours, and the total value of the item or items was less than $950.

Theft crimes, as is the case with most other crimes, is what is known as “specific intent" crime. This means that the prosecution needs to prove that the defendant intended to permanently deprive the owner of the property with its possession. For example, if you know an item needs to be paid for at a store, but try to leave without paying; that is generally sufficient to show intent. On the other hand, if you are trying on clothes in a fitting room, and forget that you are still wearing a shirt you were trying on before putting on your jacket, then leave the store (whether or not you buy anything;) then you did not intend to steal the shirt even though what you did would otherwise constitute petty theft.

Penalties For Violating Penal Code Sections:

Petty theft and shoplifting will always be treated as misdemeanors. Grand theft, however, is a type of crime known as a "wobbler." This means it can be treated as either a misdemeanor or a felony, depending on the fact and circumstances surrounding the crime; as determined by the prosecutor, in their discretion. The penalties for misdemeanor grand theft are much less severe than for a felony charge.

Penalties for Petty Theft under Penal Code Section 484 and Shoplifting Under Section 490.5:

Imprisonment in a county jail for up to six months; and/or
A fine of up to $1,000.00.; and/or
Three years of summary probation.

Penalties for Misdemeanor Grand Theft under Penal Code Section 487:

Imprisonment in a county jail for up to six months; and/or
A fine of up to $1,000.00.; and/or
Three years of summary probation.

Penalties for Felony Grand Theft under Penal Code Section 487:

Imprisonment in a county jail for up to one year; or
Imprisonment in a state prison for between 16 months and 3 years; and/or
A fine of up to $10,000.00; and/or
Five years formal probation.

Common Defenses to Theft Crimes:

There are many viable defenses to charges of theft. Also, Judges take into consideration a plethora of mitigating circumstances when sentencing for crimes of theft. It is because of these factors that it is so important to hire an experienced defense attorney who specializes in using the facts to get your charges dismissed, to win for you at a jury trial, or to get the charge(s) and/or penalties levied against you reduced.

Lack of Requisite Intent:

If the defendant did not intend to permanently deprive the owner of the item, then they cannot get convicted of either charge of theft.

Another common defense is that the defendant did not specifically intend on stealing the goods. A good example would be if someone is shopping, and they put an item in their pocket and walked out of the store; inadvertently forgetting to pay for the item.

Value of Goods Stolen:

If you can successfully argue that the value of the goods stolen was less than $950, then a charge of grand theft can be reduced to petty theft. Sometimes, the prosecuting witness may value the goods to the police at a rate much higher than their fair market value. A common example is when the items are used, but the complaining witness gives the police the value of the goods as if they were new.

Claim of Right to the Property:

Another possible defense is that someone believed that they had a claim of right to the property. For example, let's say someone bought a car from someone else, and they thought that they had good title. It later comes to light that the title was fraudulent, and the buyer had been tricked. If the buyer is charged with having stolen the car, they can defend themselves by showing that they reasonably believed that the item was their property.

How We can Help:

You may have several viable defenses to a charge of theft. You may not have intended to take the property. The value of the property may be less than the amount necessary to prove grand theft. It may be a question of mistaken identity. However, whatever your defense may be, you need an experienced theft crimes defense attorney to navigate the legal waters for you. David Foos has been practicing criminal defense for over 40 years. David has been a public defender and a Judicial Officer with the Sacramento Superior Court for 16 years. David is a very experienced attorney and will strongly advocate for your interests. If you have been charges with a theft crime, do not hesitate to call David Foos. Your initial consultation will be of no charge to you. Contact our Sacramento Criminal Attorney at 916-779-3500, or on the web at Contact@foosgavinlaw.com.