California’s law on theft defines theft as the intentional and unlawful taking of the personal property of another. For an act to qualify as theft, the offender must intend to permanently deprive the owner of the property.
Petty theft entails the intentional taking away of the following property belonging to another when:
- The value of the property is $950 or less;
- The property is not taken directly from the owner, such as from the person’s clothing, body, or container held or carried by, the person (such as in a case of mugging or robbery);
- The property taken is not any of the following type of property (the taking of which constitutes grand theft):
- Fruit/nuts worth more than $250
- Fish/shellﬁsh/aquacultural products worth more than $250 when taken from a commercial ﬁshery/research operation
What Types of Theft May Give Rise to Petty Theft Under Penal Code 484 and 488?
Theft by False Pretenses occurs when a defendant uses false pretense to convict the property owner to turn over possession and title/ownership of the property to the defendant. Here are the elements required for a charge of theft by false pretense:
- You knowingly and intentionally deceived a property owner by false or fraudulent representation or pretense;
- You did so intending to persuade the owner, or the owner’s agent, to let the defendant, or another person, take possession and ownership of the property;
- The owner let you, or another person, take possession and ownership of the property because the owner, relied on the representation or pretense.
- You took possession of property owned by someone else;
- You took the property without the owner’s consent;
- When you took the property, you intended to deprive the owner of it permanently or to remove it from the owner’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
- You moved the property, even a small distance, and kept it for any period of time, however brief4
Petty theft by trick is similar to petty theft by false pretense. The main difference between the two is that in cases of petty theft by false pretense, the owner of the property turns over both possession and title/ownership of the property to the thief.
Whereas, in cases of petty theft by trick, the owner merely gives the thief possession of the property, but not ownership/title. The following are the elements required for a charge of theft by trick5:
- You obtained property that you knew was owned by someone else;
- The property owner or the owner’s agent consented to your possession of the property because you used fraud or deceit;
- When you obtained the property, you intended to deprive the owner of it permanently or to remove it from the owner’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 property6;
- You kept the property for any length of time; and The owner did not intend to transfer ownership of the property.
Theft by embezzlement occurs when:
|Petty Theft||Grand Theft|
|The property stolen was worth $950 or less10||The property stolen was worth more than $950|
|The property was not taken directly from the owner, such as from the person’s clothing, body, or container held or carried by, the person (such as in a case of mugging or robbery)||The property was taken from a person, no matter how much the property is worth (i.e. taken from the clothing of, on the body of, or in a container held or carried by a person, as in a mugging)|
|The property taken was NOT any of the following type of property:|
|Usually charged as a misdemeanor. If convicted, the following penalties may apply:||May be charged as a misdemeanor or a felony.|
The most common defenses that a skilled criminal defense attorney can put forward to defend a charge of petty theft are as follows:
Intent is one of the requisite elements that a prosecutor has to show in order to convict of a theft crime. If you did not have intent to steal in the first place, you are not guilty of petty theft.
If the owner of the property that you allegedly stole gave you permission to take the property, you are not guilty of petty theft.
Jessica’s neighbor gave her permission to use her landscaping tools over the weekend. However, after Jessica went over to the neighbor’s front lawn and took the Landscaping tools to trim her trees, the neighbor accused Jessica of stealing the lawn mower from him. Jessica can use the defense of consent to show that she had the owner’s permission to use the landscaping tools and that her intent was not to steal it, but only to borrow it.
If the property actually belonged to you or if you honestly but mistakenly thought that the property you took belonged to you, you are not guilty of petty theft. This additionally shows that your intent was not to take the property; rather to claim or re-claim what you thought was rightfully yours11.
Jane was sitting next to another female patron while riding a bus. When Jane got up to get off the bus at her stop, Jane picked up what she thought was her purse. However, the purse belonged to the other female patron. The purse looked very similar to Jane’s and Jane honestly believed she was picking up her own purse. Because Jane’s intent was not to steal but to simply claim what she thought belonged to her, she will not be guilty of petty theft.
If you were wrongfully accused of taking something, but you did not do so, or did not intent to do so, your criminal defense attorney will ensure to thoroughly investigate the evidence in your favor and to try to show that you were framed, set up, or just plainly wrongfully blamed for something you did not do.
Petty theft is typically charged as a misdemeanor offense. As such, the penalties that a defendant may be facing if convicted of the offense are as follows:
First Time Offender:
Pursuant to California Penal Section 490.1, if you stole property the value of which is $50 or less, your attorney may be able to convince a prosecutor to reduce your charge to an infraction. This applies if you have no other theft or theft-related convictions on record. 12
If the aggregate loss exceeds statutory amounts ranging from $50,000 to $2.5 million, an additional term of one to four years may be imposed.13
Can you expunge petty theft?
Yes in most cases. Petty theft is stealing items with a value of $950 or less and is usually charged as a misdemeanor. However, petty theft can be charged as a felony if you have a prior conviction of stealing, embezzling or defrauding an elderly person, or your prior was a serious offense such as homicide, a forcible sex offense, or sex offense against a minor. In these case, you face state prison time and if served, will render you ineligible to have the offense expunged.
Petty Theft With a Prior
Pursuant to California Penal Code Section 666 – Petty Theft With a Prior, if you have been convicted three or more times of any of the following offenses (listed below), and you served time, you may face increased penalties for a petty theft conviction:
- Petty theft
- Grand theft
- Auto theft under California Vehicle Code Section 10851
- Carjacking under Penal Code 215
- Robbery under Penal Code 211
- Felony violation under Penal Code Section 496
Grand Theft; Grand Theft Auto; Grand Theft Firearm:
Under Penal Code Sections 484 and 487, a defendant may be charged for grand theft instead of petty theft if the value of the stolen property exceeds $950, or the type of property that was stolen is a car or a firearm.
If convicted for grand theft, the defendant may face conviction for either a felony or a misdemeanor. If charged as a misdemeanor, the defendant may be sentenced to up to 1 year in county jail. If charged as felony, the defendant may face up to 16 months, 2 years, or 3 years of imprisonment in state prison.
If convicted of grand theft auto, the defendant will likely face a felony charge, as this offense is almost always charged as a felony.
If convicted of grand theft firearm, the defendant will face a felony charge.
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- Elements; California’s Penal Code Sections 484, 488 – California’s Law on Theft: “484(a): 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.” California Penal Code Section 488: “Theft in other cases is petty theft.” [↩]
- Theft can be committed in several ways, such as permanently depriving another of their property; temporarily depriving another of their property in a way in which the owner is denied of a major part of its value or enjoyment; deceiving or defrauding another of their property or services; or with the intent to do any of the above [↩]
- The value of the stolen item(s) is determined by the fair market value if it involves property. If it involves services, the value is determined by the contract price if there was a contract, or the reasonable value/rate for services in the area if there was no contract [↩]
- To constitute a completed theft, the property must be asported or carried away. (People v. Shannon (1998) 66 Cal.App.4th 649, 654 [78 Cal.Rptr.2d 177].) Asportation requires three things: (1) the goods are severed from the possession or custody of the owner, (2) the goods are in the complete possession of the thief or thieves, and (3) the property is moved, however slightly. (Ibid. People v. Edwards (1925) 72 Cal.App. 102, 114–115 [236 P. 944], disapproved on other grounds in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]; People v. Collins (1959) 172 Cal.App.2d 295, 299 [342 P.2d 370] [joint possession of property by more than one thief].) Asportation is fulﬁlled by wrongful removal of property from the owner or possessor, against his or her will with the intent to steal it, even though the property is retained by the thief but a moment. (People v. Quiel (1945) 68 Cal.App.2d 674, 679 [157 P.2d 446]. [↩]
- Although fraud is used to obtain the property in both theft by trick and theft by false pretense, in theft by false pretense, the thief obtains both possession and title to the property. For theft by trick, the thief gains only possession of the property. (People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271]; People v. Randono (1973) 32 Cal.App.3d 164, 172 [108 Cal.Rptr. 326]; People v. Traster (2003) 111 Cal.App.4th 1377, 1387 [4 Cal.Rptr.3d 680]. [↩]
- Intent to Deprive Owner of Main Value. People v. Avery (2002) 27 Cal.4th 49, 57–59 [115 Cal.Rptr.2d 403, 38 P.3d 1] [↩]
- Elements. Pen. Code, §§ 484, 503–515 [↩]
- Fraud Deﬁned. People v. Talbot (1934) 220 Cal. 3, 15 [28 P.2d 1057]; People v. Stein (1979) 94 Cal.App.3d 235, 241 [156 Cal.Rptr. 299] [↩]
- Intent to Temporarily Deprive Owner of Property Sufficient. People v. Casas (2010) 184 Cal.App.4th 1242, 1246–1247 [109 Cal.Rptr.3d 811]
[acknowledging general rule for larceny requires intent to permanently deprive owner of property, citing People v. Davis (1998) 19 Cal.4th 301, 305 [79 Cal.Rptr.2d 295, 965 P.2d 1165] [↩]
- Determination of Grand vs. Petty Theft Pen. Code, §§ 486, 487–488, 490.2, 491 [↩]
- If a person actually believes that he or she has a right to the property even if that belief is mistaken or unreasonable, such belief is a defense to theft. (People v. Romo (1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440]; see also People v. Devine (1892) 95 Cal. 227, 229 [30 P. 378] [“[i]t is clear that a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another’s goods”]; In re Bayles (1920) 47 Cal.App. 517, 519–521 [190 P. 1034] [larceny conviction reversed where landlady actually believed she was entitled to take tenant’s property for cleaning fees incurred even if her belief was unreasonable]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 4–6, 10–11 [160 Cal.Rptr. 692]; see CALCRIM No. 1863, Defense to Theft or Robbery: Claim of Right. [↩]
- Penal Code Section 490.1: (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). [↩]
- Pen. Code, § 12022.6(a)(1)–(4); see People v. Daniel (1983) 145 Cal.App.3d 168, 174–175 [193 Cal.Rptr. 277] [no error in refusing to give unanimity instruction]. [↩]