Introduction

Theft crimes in California are divided into two categories: petty theft, and grand theft.  Before the passage of Prop 47, grand theft was chargeable for the taking of certain types of property without regard to the value of the item.  For example, stealing a car was considered grand theft even when the car was not worth more than its scrap value.  Now, with the exception of theft of firearms and for people with certain criminal histories, grand theft requires the taking of property worth more than $950.00.

Petty theft, in general, is the taking of property worth $950.00 or less.  Where the value of the item is worth $50.00 or less, it can be charged as an infraction or misdemeanor so long as the person doesn’t have any prior theft convictions.

Chico Criminal Defense Lawyer Matthew Luzaich provides free legal consultations with prospective clients to discuss their cases.  If you have been charged with a theft crime, call today to discuss your specific facts, possible defenses and outcomes, and how you can best fight your case.

The Statute(s)

Penal Code § 484(a) – Theft Defined

Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.  In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test.  If there be no contract price, the reasonable and going wage for the service rendered shall govern.  For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question.  The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud.

Penal Code § 486 – Degrees of Theft

Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.

Penal Code § 459.5 – Shoplifting

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

Penal Code § 487 – Grand Theft

Grand theft is theft committed in any of the following cases:

(a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).

(b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases:

(1)(A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250).

(B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value.

(2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250).

(3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period.

(c) When the property is taken from the person of another.

(d) When the property taken is any of the following:

(1) An automobile.

(2) A firearm.

Penal Code § 490.1 – Petty Theft

(a) Petty theft, where the value of the money, labor, real or personal property taken is of a value which does not exceed fifty dollars ($50), may be charged as a misdemeanor or an infraction, at the discretion of the prosecutor, provided that the person charged with the offense has no other theft or theft-related conviction.

(b) Any offense charged as an infraction under this section shall be subject to the provisions of subdivision (d) of Section 17 and Sections 19.6 and 19.7.  A violation which is an infraction under this section is punishable by a fine not exceeding two hundred fifty dollars ($250).

Penal Code § 490.2(a) – Prop 47

Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

(c) This section shall not apply to theft of a firearm.

The Elements

The following are the instructions a jury will be given to determine whether the person committed the crime:

Shoplifting (Penal Code § 459.5)

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant entered a commercial establishment;
  2. When the defendant entered the commercial establishment, it was open during regular business hours; AND
  3. When (he/she) entered the commercial establishment, (he/she) intended to commit theft.

To decide whether the defendant intended to commit theft, please refer to the separate instructions that I (will give/have given) you on that crime.

The defendant does not need to have actually committed theft as long as (he/she) entered with the intent to do so.

A person enters a structure if some part of his or her body [or some object under his or her control] penetrates the area inside the structure’s outer boundary.

A structure’s outer boundary includes the area inside a window screen. (CALCRIM No. 1703)

Theft by Larceny (Pen. Code § 484) – Basic Elements of Theft

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant took possession of property owned by someone else;
  1. The defendant took the property without the owner’s [or owner’s agent’s] consent;
  1. When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner’s [or owner’s agent’s] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property); AND
  1. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.

An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property.

For petty theft, the property taken can be of any value, no matter how slight. (CALCRIM No. 1800) 

 (For Penal Code §§ 486, 487–488, 490.2, 491) – Petty Theft & Grand Theft

If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft.

The defendant committed petty theft if (he/she) stole property [or services] worth $950 or less.  The defendant committed grand theft if the value of the property [or services] is more than $950.

Theft of property from the person is grand theft if the value of the property is more than $950. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person.

Theft of (an automobile/a firearm/a horse/ ) is grand theft if the value of the property is more than $950.

Theft of (fruit/nuts/ ) worth more than $950 is grand theft.

Theft of (fish/shellfish/aquacultural products/ ) worth more than $950 is grand theft if (it/they) (is/are) taken from a (commercial fishery/research operation).

The value of may be established by evidence proving that on the day of the theft, the same items of the same variety and weight as those stolen had a wholesale value of more than $950.

The value of (property/services) is the fair (market value of the property/market wage for the services performed).

Fair Market Value—Generally:  Fair market value is the highest price the property would reasonably have been sold for in the open market at the time of, and in the general location of, the theft.

Fair Market Value—Urgent Sale:  Fair market value is the price a reasonable buyer and seller would agree on if the buyer wanted to buy the property and the seller wanted to sell it, but neither was under an urgent need to buy or sell.

The People have the burden of proving beyond a reasonable doubt that the theft was grand theft rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of grand theft. (CALCRIM No. 1801)

Penalties

Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. Penal Code § 459.5(a)

Petty theft is a “wobblette,” meaning it can be charged as an infraction or misdemeanor.  Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. Penal Code § 490.  Other penalties or alternative penalties may apply as well.

Where the value of the money, labor, real or personal property taken is of a value which does not exceed fifty dollars ($50), it may be charged as a misdemeanor or an infraction, at the discretion of the prosecutor, provided that the person charged with the offense has no other theft or theft-related conviction (Penal Code 490.1(a)).  A violation which is an infraction under this section is punishable by a fine not exceeding two hundred fifty dollars ($250). Penal Code § 490.1(b)

Grand theft is a “wobbler,” meaning it may be charged as a misdemeanor or felony and is punishable as follows: (a) If the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, or two or three years. (b) If the grand theft involves a violation of Section 487a, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment. The proceeds of this fine shall be allocated to the Bureau of Livestock Identification to be used, upon appropriation by the Legislature, for purposes relating to the investigation of cases involving grand theft of any animal or animals, or of the carcass or carcasses of, or any portion of the carcass or carcasses of, any animal specified in Section 487a. (c) In all other cases, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170. Penal Code § 489

Enhancement penalties may also apply depending on the dollar value of the property.  Furthermore, theft of a firearm also carries more severe penalties and counts as a California strike.

Defenses

Lack of intent to steal

  1. If you took something accidentally rather than intentionally, you have a defense.
    1. For example – I walk into a grocery store with my screaming and crying children while on the phone with the doctor who is giving me news about my family member’s cancer spreading, and I walk out the door of the store with a shopping cart full of groceries.  In this situation, the children and the phone call distracted me so much so that I accidentally exited the store without paying.  This would be a defense to a shoplifting charge since I did not “intend” to steal, I was just so distracted that I forgot to pay before leaving.

You didn’t actually steal anything

  1. If you did not take the allegedly “stolen” goods, you have a defense.
    1. For example – I walk into a hardware store to buy batteries for my electronic device.  It just so happens that the store sells the electronic device as well.  I buy the batteries and walk out of the store but a security guard stops me suspecting me of stealing the electronic device.  I have a defense that the device could not have been stolen since I was the rightful owner.

You were falsely accused

  1. Where goods were stolen, but not by you, you have a defense.  Or where no goods were stolen but store employees or owners believe you stole something, you have a defense.
    1. For example – You are with a group of friends in a mall store.  You all walk out together after a store security guard sees someone in your group take an item and put it in his pocket.  It just so happens that several people in your group have similar builds and the security guard saw the theft on a black and white TV.  He picks you out of the group erroneously as the one who stole the goods.  You have a defense.

You had a good faith belief that the property was yours

  1. This can occur in a variety of circumstances.
    1. For example – If you own a game console (practically indistinguishable from other game consoles), and you are at a friend’s house playing video games with other people who also brought their same game consoles, and you grab the one you think is yours but is actually another person’s, you have a defense.  You had a good faith belief that the one you took was yours and you openly took it.

Miscellaneous Information

A theft conviction can impact more than just a person’s freedom and criminal record.  Employment opportunities may be jeopardized drastically as well.  An employer who sees a theft conviction may be wary of hiring a person for fear that their company property may be in danger, or that they will not be able to trust the person.  Keeping a theft conviction off of a person’s record is as important for these reasons as avoiding the criminal penalties associated with it.

For those convicted of this category of offenses, expungements can help mitigate the problem above.  See the Law Offices of Matthew S. Luzaich expungement page for more information.

What You Should Do

Call Chico Theft Crimes Lawyer Matthew Luzaich for a free legal consultation.  Speaking with a lawyer today to learn about your options may ease some of your stress in dealing with a theft arrest and charge.

Deciding to let a professional handle your case for you may result in a better outcome for you.  You have nothing to lose speaking with an experienced professional.  Call today.

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