Los Angeles Theft Attorneys

Theft can be as simple as shoplifting candy or a pair of socks to stealing a car or embezzling millions of dollars. These are crimes of moral turpitude and can seriously impact your ability to find suitable employment, obtain a public license or rent an apartment. If you are not a US citizen, you risk being deported.

Petty Theft

Petty theft is the misappropriation or stealing of an item valued at no more than $950¹. It is found under Penal Codes 484 pc and 488. Most petty theft offenses are charged as misdemeanors unless you have prior convictions.

Petty theft is also referred to as theft by larceny. Its elements are:

• Taking possession of the property of another
• Taking the property without the owner’s permission
• When the property was taken, you intended to permanently deprive the owner of it permanently or long enough so that the owner would miss a major portion of its value or enjoyment
• And you move the property at any distance and possessed it for any length of time

You do have to at least kept the property long enough for the owner to have missed out on its value or enjoyment. For example, if you took someone’s wallet and that person was unable to buy food or gas or purchase services during the time you had it, then you are guilty of theft. But, if you returned the wallet shortly after taking it and the owner was unaware the wallet was gone, you will likely not be convicted so long as you did not take cash or use its contents to your own benefit.

Petty theft also consists of:

Theft by Trick

• You took property that you knew belonged to someone else
• The owner allowed you possession because of fraud or deceit on your part
• You intended to deprive the owner of it permanently or for a period long enough so the owner would miss a major portion of its value or the value of its enjoyment
• You kept the property for any period of time
• The owner did not intend to transfer ownership to you

Theft by Embezzlement

This is a breach of trust or confidence in you by your taking unfair advantage of your position of trust. It is not a defense to have intended to return the property at some later time.

Theft by Fraud or False Pretense

This is found under Penal Code 532. Its elements are:

• You used a false document or writing signed by you
• There is testimony from at least 2 persons
• Or testimony from one person with other evidence and,
• The person from whom you took the property relied on your false promise

This is a crime of deception if you made a claim you knew was false or recklessly claim something you have no reason to believe is true. It is also making a promise that you did not intend to keep so as to induce or convince a person to turn over ownership of property.

An example is a person who claims to have cancer and needs funds to pay for his treatment. People send him money based on his false claim of a serious illness. But, if he only claimed he had cancer but never asked for money but people sent it to him anyway, he is not guilty of theft by false pretenses.

Another case is where an alleged victim claims that a person sold him a drug that could cure diabetes but the drug was vitamin C. But unless there was a writing to that effect or testimony from at least 2 persons that this person made such false claims, the person cannot be prosecuted.

Grand Theft

Grand theft has the same elements of petty theft except that the value of the item stolen was more than $950.  You may also be guilty of grand theft if you took any of the following items of property, regardless of value:

• Firearm
• Automobile
• Certain animals–sheep, horse or cow
• It was taken off the person’s clothing or container held by him or her

AND, if you have prior offenses that include:

• Offenses for which you are required to register as a sex offender
• A serious violent felony conviction–kidnapping, murder, rape or other sexually violent offenses

Penalties For Grand Theft

Grand theft is a wobbler offense in most instances so that the prosecutor has the option of charging you with either a felony or a misdemeanor based on the circumstances of the case and your criminal record.

A misdemeanor conviction is up to one year in county jail. A felony is either:

• Up to one year in county jail and formal probation, OR
• 16 months, 2 or 3 years in county jail

If the theft was of a firearm with a value of over $950, you face 16 months 2 or 3 years in state prison and will have a strike on your record under the state’s three-strikes law.

You also face enhancements to your sentence that are consecutive and not concurrent, meaning that you serve additional time in prison. The sentence enhancements are:

1. One year if the property taken valued between $65,001 to $200,000
2. Two years if the property was between $200,000 and $1,300,001
3. Three years if the property was $1,300,001 to $3,200,001

You can be charged with multiple counts of grand theft unless they were all considered as part of a single common plan or scheme even though you engaged in stealing different amounts on different days.

Grand Theft Auto

You can either be charged with grand theft auto under Penal Code 487(d)(1) or unlawful taking of a vehicle under Vehicle Code Section 10851, which is referred to as “joyriding.” The difference is that in the latter case you only intended to take the car for a short time or ride.

The elements of grand theft auto consist of:

• You took a vehicle belonging to someone else
• The vehicle had a value of more than $950
• The owner did not give you permission to take the car
• You intended to deprive the owner of the car permanently or to have it long enough to deprive the owner of a significant portion of the value or enjoyment of the automobile
• And you moved the vehicle at least a short distance and kept it for a some period of time

Grand theft auto can also be committed by trickery, false pretenses or embezzlement if the offense involves any of the elements outlined above. You can be convicted of grand theft auto if the owner allowed you to possess the car but his permission was given because the owner relied on your false statements or representations.

Penalties For Grand Theft Auto

If a felony, you face:

• 16 months, 2 or 3 years in county jail
• A fine up to $10,000
• Or both a fine and jail

If the vehicle was a particularly expensive one such as a Maserati or other high-end vehicle, you face an enhanced sentence or additional time that is to be served consecutively:

• One year if the property taken valued between $65,001 to $200,000
• Two years if the property was between $200,000 and $1,300,001

Shoplifting

Shoplifting is a separate offense from petty theft or even grand theft and is found under PC 459.5.

Its elements are:

• You entered a commercial establishment
• During that business’ usual or regular working hours
• With the intent to steal an item or items valued at no more than $950

So long as you had the intent to commit shoplifting, you can be charged although most stores will first see if you go through the cashier without paying for the item. You may be charged with petty theft if you leave the store without paying, but be charged with shoplifting if you demonstrated intent to steal the item before actually leaving the establishment. You cannot be charged with both petty theft and shoplifting.

For instance, if you are observed hiding clothes in a dressing room, that could be construed as intent to steal so that you would face a shoplifting charge.

You must also have had the intent to steal when you entered the establishment. If you formed the intent after you were already there and stole an item or attempted to, it would satisfy the elements for petty theft. Another example is if you had items in your shopping basket that you were intending to pay for but on the way to the cashier were seen pocketing or hiding an item in your clothes, it would also be considered petty theft.

Shoplifting is a misdemeanor with penalties of up to one year in jail and/or a fine up to $1000.

However, if you have certain prior convictions, then you can be charged with a felony. These include:

• Any offense for which you must register as a sex offender
• A sexually violent offense
• A sex crime against a minor under 14 years of age
• Murder or attempted murder
• Solicitation to commit murder
• Gross vehicular manslaughter while intoxicated
• Possession of a weapon of mass destruction
• Assault on a police officer with a machine gun
• Any other violent felony with a sentence of life imprisonment or death

You penalty in these cases is 16 months, 2 or 3 years in county jail and/or a fine of up to $10,000 and formal probation.

Burglary

Burglary is found under PC 459. It is the entering of a residence, commercial building or room with the intent to commit petty or grand larceny or a felony. To be charged and convicted of the offense, you need only have had the intent to commit these offenses when you entered the structure.

1. Burglary is either first or second degree. First degree is the entering of a residence and is referred to as “residential burglary.” It is always charged as a felony.

A residence is a structure that someone uses to live or dwell in and includes any of the following:

• An inhabited house
• An inhabited boat or floating home
• Any room within an inhabited house
• An inhabited trailer coach
• An inhabited motel or hotel room
• Any attached portion of an inhabited dwelling such as a garage

Inhabited does not require that anyone be present when you unlawfully enter the structure. It is not inhabited if the occupants left without any intent to return.

Second degree burglary is a wobbler offense and includes the unlawful entry of any other structure such as an office, locked vehicle or commercial establishment and is referred to as “commercial burglary.” The crime is committed when you enter the structure with the intent to commit a theft or felony, and:

1. The value of the property stolen or which you intended to steal is valued at more than $950

1. The structure was not a commercial establishment or,
2. The structure was a commercial establishment but you entered it after normal business hours

Penalties for Burglary

The penalties for first degree burglary are:

• 2, 4 or 6 years in state prison
• And/or a fine up to $10,000
• A strike on your record

For second degree burglary as a misdemeanor:

• Summary probation
• Up to one year in jail
• A fine up to $1000

For second degree burglary as a felony:

• 16 months, 2 or 3 years in county jail
• And/or a fine up to $10,000
• Formal probation

Embezzlement

It is a crime to appropriate someone else’s property that has been entrusted to you. In these cases, the owner of the property granted you permission to possess the property but you used it for your own benefit. Specifically, the crime requires:

1. An owner of property trusted you with their property;
2. Because of the trust that person had in you, and
3. You fraudulently converted or used the property for your own benefit, and
4. You had the intent to deprive the owner of the use of the property

The offense requires that there be the element of trust between owner and offender and that the property taken was not used for the owner’s benefit but for the offender’s gain or caused a loss to the owner. It is a breach of the trust, duty or confidence that the owner had in the offender.

Examples of a trust relationship include an employer and employee, trustee, or even a car hop who is entrusted to take your car, park it and return it to you in the same condition. An employee must have been entrusted with certain property that was misappropriated. If the employee takes property that he was not entrusted with, then it is theft but not embezzlement.

It does not matter if you intended to return the property at some future date since you have already deprived the owner of its use.

Penalties for Grand Theft Embezzlement

Grand theft embezzlement is a wobbler offense so that you could be charged with either a misdemeanor or felony. It consists of you embezzling:

• Property worth more than $950
• An automobile
• A firearm–always a felony
• Small sums over a 12-month period that add up to $950 or more

If a misdemeanor, the penalties are:

• Summary probation and/or
• Up to one year in county jail and/or
• Fine up to $1000

If a felony:

• 16 months, 2 or 3 years in jail
• And/or a fine up to $10,000
• Formal probation

It is the same for embezzlement theft of a firearm except that your incarceration is in state prison. This does not allow you to expunge the offense.

There are also enhancements to a sentence that adds time to be served consecutively:

1. One year added if property was valued over $65,000
2. Two years added if property was valued over $200,000
3. Three years added if property was valued over $1,300,000
4. Four years added if property was valued over $3,200,000

Further, if the person from whom you embezzled property was 65 or over, you face elder abuse charges. Another aggravating factor is if the owner was mentally or physically disabled.

A mitigating factor is if you return the property before charges are made though you will still be charged.

Effects Of Proposition 47 On Theft Crime Sentencing

In November, 2014, California voters approved the Safe Neighborhoods and Schools Act, or Proposition 47. The effect of the law was to downgrade many low level theft offenses from felonies to misdemeanors. For inmates serving time for a felony conviction on a theft charge, they could petition the court to recall or vacate their sentence and then impose a new one as a misdemeanor. If granted, it could mean immediate release from jail and downgrading their probation to summary status. A felony conviction can mean incarceration for 16 months, 2 or 3 years. The maximum sentence for a misdemeanor theft offense is either 6 months or one year.

The court is not required to re-sentence the offender if it determines that the offender poses an unreasonable risk of danger to public safety. The court will look at :

• Age of the offender and nature of the prior offenses
• If harm was caused to anyone during commission of a prior offense
• Length of previous sentences imposed
• Disciplinary record and efforts at rehabilitation
• Any other risk of committing a new offense if released

It also allows those persons who have been convicted of felony theft and served their sentence to petition the court to reclassify their offense to a misdemeanor.

A misdemeanor is certainly preferable to a felony conviction where you lose your 2^nd Amendment right to own or possess a firearm. Convicted felons cannot run for public office, may not qualify for certain public benefits and encounter substantial obstacles in finding suitable employment, housing, or seeking higher education, loans and travel opportunities.

There are a number of California theft offenses that are wobblers that were affected by Proposition 47 so that they are now classified as misdemeanors IF the property stolen is valued at $950 or less:

• Grand theft auto
• Theft of a firearm
• Shoplifting
• Receiving stolen property
• Forgery of a check or money order
• Bad Checks law–if total value of the checks is $950 or less

However, you will face felony charges regardless of the value of the property stolen if:

1. You are a registered sex offender
2. You have prior convictions for sex offenses against children or serious felonies such as murder, rape and sexual assault

Should you have prior petty theft convictions, the current petty theft offense will now be charged as a misdemeanor when before Proposition 47, it was a felony. This does not apply if the prior theft involved embezzlement from an elderly or dependent person. In these cases, the new petty theft charge will still be charged as a felony.

Prosecutors still have discretion to charge these crimes as misdemeanors or felonies if the value of the item taken is over $950 but your priors are not sex or violent offenses.

Proposition 47 also created the separate crime of shoplifting that is described above. It is entering a commercial establishment while it is open with the intent to steal an item valued at $950 or less. It is always charged as a misdemeanor.

Defenses To Theft Crimes

There are a number of defenses available to defendants accused of a theft crime:

Claim of Right or Ownership

If you have a good faith belief that the item taken was yours or that you had a valid claim to it, then you may have a valid defense. Your belief need not be a reasonable one but you should be able to support it by other evidence such as testimony from a reliable or neutral witness that the owner gave you the property or told you that it was yours.

Mistake

Should you have taken an item by mistake, you could claim this a defense. For example, you took a piece of luggage or an expensive piece of clothing that was identical to yours and you can show that it was identical.

Return of Property

Normally, this is not a valid defense unless you can demonstrate that you borrowed the property and just neglected to return it or that the owner did not miss out on any benefit or enjoyment of the property. If you find a wallet but returned it to the owner who did not realize it was even missing and you did not take any cash, credit cards or use anything in it for your own benefit, then this may be a defense. However, if you intended to permanently deprive the owner of the property when it was taken, then you have committed theft.

In most cases, if you do return the property before being charged, it could mitigate any sentence imposed.

Asportation

This refers to the necessary element of having carried away the stolen item in order to complete the theft. It requires:

1. That the item was severed or taken from the possession of the owner
2. The goods are now in the complete possession of the offender
3. The property was moved any distance at all

Defenses to Theft by False Pretenses

If charged with theft by false pretenses, you may claim a defense if:

1. You did not know that information given by you was false
2. You reasonably believed the statement or information you gave was true
3. You did not have an obligation to give information and you are charged with withholding information that you were obligated to reveal

Authorized to Use the Property

You would have to produce evidence demonstrating that the owner gave you authorization to use the property in some fashion. If you were permitted to drive the owner’s car to the grocery store but you took your girlfriend out on a date, it is not an authorized use and you exceeded the permission you were given.

However, if you had a good faith belief that your actions were authorized, it is a defense. A good faith belief is valid even if it is mistaken or not reasonable. For instance, if the owner of the car told you to just go to the grocery store and that he needs the car to go to LA in a few hours, you could have construed this as allowing you to use it for any other purpose.

Important Evidence in Theft Crime Cases

Value

The most essential evidence in theft crime matters is the value of the property stolen. If it is less than $950, then you may only be charged with a misdemeanor unless you have certain priors that are serious felonies or sex offenses. Sometimes, expert testimony is needed to establish value.

Intent

Intent to deprive the owner of the property permanently or possess it long enough to deprive the owner of its major value is an important element. Intent is shown by having possessed the item for at least several hours and you kept it in a secured location. If you made no attempt to contact the owner or return it, then intent can be shown in that you wanted to permanently deprive the owner of the item.

In shoplifting cases, if the item being stolen is hidden under your clothes or in a handbag, this shows intent to permanently deprive the owner or store of the item.

If charged with embezzlement, then the prosecution must produce evidence that you were in a position of trust by the owner and that you used the property entrusted to you for your own benefit without the permission of the owner. For instance, you were told to invest funds in a certain transaction but you deposited it in your own bank account or used it in some other way that was not authorized.

Good Faith Belief

If you allege you had a good faith belief that owned the property or used it in an authorized manner, you have to produce some evidence to justify your belief. If you had used the property in a certain way on previous occasions with the owner’s tacit knowledge, then you can show that your use of it on the current occasion was based on a good faith belief you could use it in a similar manner once again.

In shoplifting cases especially, videos can show that the defendant intended to steal an item by slipping it in or under clothing or in a handbag while placing other items in a basket. If confronted by store personnel, the statements given by the defendant may be incriminating. It is not necessary that the person actually exit the store without paying for the item to be charged or convicted since it is the intent to steal that is controlling.

Obligation to Investigate

Swap meet vendors, pawn shop dealers, second hand book dealers and others are required by law to determine if an item offered to them for purchase was stolen or not. The vendor or dealer will have to produce some kind of evidence indicating that they engaged in some action to determine if the person is the true owner, if there is a record that the item was stolen or if the person was authorized to sell the item.

1. Penal Code 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. [↩]