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Theft

Theft

A theft charge creates the possibility of serious legal penalties and requires dealing with the complex court system. The anxiety caused by potentially having to pay costly fines or serve a jail sentence and bear social judgment from being labeled a thief can feel crushing. What’s more, a theft conviction will create a permanent criminal record that will hamper one’s career and social life.  The best strategy for avoiding these painful consequences is preparing a strong legal defense by hiring a skilled attorney to guide you through the court. The Southwest Legal team of top-rated Riverside County criminal defense attorneys have decades of experience defending those who have been accused of theft. If you have been charged with theft, call Southwest Legal today for a free consultation and begin the process of beating your case! 

 California Theft Statutes

California Penal Code 484 defines theft as the unlawful taking someone else’s property with the intent to permanently deprive them of that property. Theft can be charged as either “petty theft” or “grand theft.” Petty theft is defined by California Penal Code 488 as the unlawful taking of property valued at $950 or less while grand theft is defined by California Penal Code 487 as the unlawful taking of property valued at more than $950. Grand theft triggers more serious legal consequences than petty theft. 

The prosecution must prove four elements beyond a reasonable doubt to secure a theft conviction:

1. Possession of someone else’s property

2. The property owner did not consent to that possession

3. The defendant intended to permanently deny the owner of their property

4. The defendant moved the property in order to possess it 

Definition Of Possession

The prosecution must prove the defendant had someone else’s property in their possession. The legal definition of possession requires having control over the property.  Some obvious examples of possession include grabbing property or placing property into one’s personal items such as a backpack or purse. However, someone can also possess property without ever physically touching it. For instance, a limo driver notices that his last client forgot her purse in the backseat of the limo. Even if the limo driver never physically touched the purse, the fact he knows it is in his limo is enough to show he had possession of the purse. The key factor in determining possession is control; if someone has control over a piece of property then they have possession of it. 

There are two types of possession: “actual” and “constructive.” 

Actual possession exists when the property is physically present in someone’s immediate area of control. An example of actual possession would be a thief snatching someone’s wallet with his hands. Other examples of actual possession include putting a stolen property in one’s purse or pocket or backpack. If the defendant has the property in a location where they can immediately exercise control over it then they have actual possession of the property. 

Constructive possession exists when someone has put property in a location where only they can exercise control over it even if that location is not physically close. For example, a defendant who stores illegal drugs in a warehouse in the city’s industrial district has constructive possession of those drugs even when he is at home. If a defendant who lives in Southern California stores a murder weapon in a log cabin in a remote part of Northern California he has constructive possession of the weapon. In both these examples, the defendants have constructive possession of the property because they stored it in locations where only they can access it. It is irrelevant that the property is miles away from the defendant’s current location, what matters is that they can exercise control over it. 

Definition Of Consent

The prosecution must also prove the defendant possessed the property without the owner’s consent. To have consent means to have permission to possess the property. Consent can be actual or implied. Actual consent exists when the property owner explicitly gives permission for someone to possess their property. For example, if a man tells a neighbor he can borrow the man’s lawnmower on the weekends he has provided actual consent for the neighbor to possess the lawnmower on the weekends. Implied consent exists when consent is expressed through behavior rather than explicit communication. For example, a man is shooting basketball by himself in a park when several people the man has never met before join him on the basketball. The man passes his basketball to one of the other people and they begin playing together. The man provided implied consent for the others to possess his basketball by passing it to them even though he never said “I give you permission to possess my basketball.” Anyone who possesses someone else’s property without their actual or implied consent may be guilty of theft if the other elements are also satisfied. 

Definition Of Intent To Permanently Deprive 

The prosecution must prove the defendant intended to permanently deprive the property owner of their property. A defendant must have intended to permanently deprive the owner of their property to be guilty of theft; any other intention cannot support a conviction. If a defendant takes someone else’s property by mistake or with the intent to return it there is no theft. Mistakes are common examples where someone takes another person’s property without intending to steal it. For example, a man takes someone else’s umbrella while leaving a restaurant mistakenly believing it to be his own. Although the man possessed someone else’s umbrella without their consent, he only did so by mistake and not with the intent to steal and therefore he is not guilty of theft. However, if after realizing that he took the wrong umbrella the man decides to keep it for himself he has now committed a theft. The man becomes a thief the moment he decides to keep property he knew did not belong to him. The intent must be to permanently deprive the owner of their property. Borrowing someone else’s property without their consent with the intent to return it is not theft (it is however still illegal and prosecutable as “trespass to chattels”). For example, a man tells a valet to park his exotic sports car and hands over his keys. The valet takes the sports car for a joyride before returning it to the parking lot. The valet has committed a trespass to chattels because he temporarily used someone else’s property in a way they did not consent to but he has not committed theft. Theft requires the intent to permanently deprive the true owner of their property. 

Definition Of Moving The Property

The prosecution must also prove the defendant moved the property in order to take possession of it. Any amount of movement, regardless of how small, is sufficient to satisfy this element of the crime. For example, a woman at a dinner party sees an open jewelry box with a pearl necklace inside. Intending to steal the necklace, the woman picks it up when the host of the party sees her and remarks “Oh do you like that necklace? I never wear it anymore, you can have it if you like.” The woman has committed theft regardless of the fact the host ended up giving her the necklace. The moment the woman picked up the necklace with the intent to steal it the theft was completed. It is irrelevant that the host eventually gave her the necklace, the theft had already occurred before her consent could be given. The woman completed the theft when she moved the necklace with the intent to permanently deprive the owner of it. 

Petty Theft Versus Grand Theft

If stolen property is valued under $950 it will be prosecuted as a petty theft under Penal Code 488. If the stolen property is valued above $950 it will be prosecuted as a grand theft under Penal Code 487. The value of stolen property is determined by its fair market value i.e. how much the property would sell for if it were sold in the open market.  

Different Types Of Theft

Theft can be further divided into several subtypes: larceny, theft by trick, theft by false pretenses, and embezzlement

Larceny

Larceny is what people typically think of when they think of theft. Anyone who physically takes another person’s property without their consent with the intent to permanently deprive them of that property has committed larceny. For example, a man takes a watch from a department store display case and places it in his pocket intending to steal it. The man has committed larceny. 

Theft By Trick

As the name implies, theft by trick is committing a theft using trickery. There are five elements the prosecution must prove to convict a defendant of theft by trick:

1. The defendant had knowledge the property belonged to someone else 

2. The defendant used fraud or deceit to gain possession of the property

3. The defendant had the intent to permanently deprive the owner of their property

4. The defendant had the property in their possession 

5. The defendant did not have the owner’s consent to take their property

For example, a conman approaches someone on the street and asks to use their cellphone to make an emergency call. The person believes the story and hands their phone to the conman who immediately puts it in his pocket and runs off. Theft by trick is distinguishable from larceny because it requires using deceit to gain possession of the property. If the conman grabbed the phone out of the person’s hand it would have been a robbery but because the conman used a fake story to get the person to hand over the phone it was a theft by trick. 

Theft By False Pretenses 

Theft by false pretenses is defined by California Penal Code 532 as gaining possession of someone else’s property through false representations of present or past facts. A person commits theft by false pretenses when they misrepresent present or past facts to gain possession of someone else’s property. For example, a surveyor for a mining company discovers a large deposit of a valuable mineral beneath a plot of land owned by an elderly man. A representative from the mineral company contacts the old man and tells him the mineral company wants to buy his land to build an office building on it. The old man is reluctant to sell but after the mineral company representative tells him “you won’t get another offer as generous as ours because this land is worthless” he decides to sell. The mineral company has committed theft by false pretenses because they knowingly misrepresented the value of the land in order to get the old man to sell it. Theft by false pretenses requires the victim to rely on the false statement; if the old man was already intending to sell the land to the mineral company before the representative made the false statement regarding the land’s value then there would be no theft by false pretenses. The property owner must have relied on the false statement in making their decision in order to convict a defendant of theft by false pretenses. 

Embezzlement

Embezzlement is defined by California Penal Code 503 as the “fraudulent appropriation of property by a person to whom it has been entrusted.” When someone with the legal right to possess someone else’s property uses that property beyond the scope of their right they are guilty of embezzlement. For example, a businessman hires a stockbroker to buy stocks and manage his portfolio. Instead of buying stocks, the stockbroker uses the businessman’s money to buy a new sports car. The stockbroker is guilty of embezzlement because he had a legal right to possess the businessman’s money but only for the purpose of buying stocks. The stockbroker exceeded the scope of his right to possess the businessman’s money by using it to buy a sports car. Anytime someone uses property they have a legal right to possess in a way that exceeds that right they gave committed embezzlement. 

Legal Defenses Against Theft

Some common legal defenses against theft include:

1. The defendant possessed the property with the owner’s consent 

2. The defendant did not intend to permanently deprive the owner of the property

3. The defendant had a right to possess the property

Owner’s Consent

If a defendant can show the property owner consented to their possession of the property they cannot be convicted of theft. For example, a man agrees to buy his neighbor’s car in exchange for a cash payment. The man pays the neighbor and takes possession of the car. However, the neighbor later regrets the sale and calls the police telling them the man stole his car. If the man can show the neighbor consented to sell him the car he cannot be convicted of theft.

The Defendant Did Not Intend To Permanently Deprive The Owner

If a defendant can show they did not intend to permanently deprive the owner of the property they cannot be convicted of theft. For example, a woman asks her roommate if she can borrow a dress to wear at an event. The roommate refuses but nonetheless the woman wears the roommate’s dress to the event before returning it the next day. The woman cannot be convicted of theft because she only intended to possess the roommate’s property for a single event rather than permanently. However, the woman may be guilty of the crime of trespass to chattels for borrowing the roommate’s dress without her consent. 

The Defendant Had A Right To The Property

If a defendant can show they had a right to possess the property they cannot be convicted of theft. For example, a man bets his friend that if he can make a basketball shot from half-court the man will give him the basketball. The friend makes the shot but the man refuses to let him keep the basketball. If the friend takes the basketball he cannot be convicted of theft because the man’s promise gave him a right to the ball. It is worth noting that a good faith belief in the right to a property, no matter how unreasonable, is sufficient to defeat a theft charge. For example, a group of teens decide to play a prank on a man known for being unintelligent. The teens tell the man that he won a new car in a contest and hand him a set of keys belonging to one of their parents. The man receives the keys and takes possession of the car. When the parents find out they call the police. The man cannot be convicted of theft because he had a good faith belief the car belonged to him even though it was unreasonable under the circumstances. The man will have to return the car to the rightful owner but he cannot be convicted of theft because of his good faith. 

Theft Penalties

Theft of items valued under $950 is charged as misdemeanor petty theft and is punishable by up to 6 months in jail and/or a fine of up to $1,000.

Theft of items valued at over $950 is charged as grand theft. Grand theft is a “wobbler” crime which means it can be charged as either a misdemeanor or a felony depending on the specific facts of the case. If charged as a misdemeanor, grand theft is punishable by up to 1 year in jail. If charged as a felony, grand theft is punishable by up to 3 years in jail. 

There are multiple sentencing enhancements for grand theft as well:

A grand theft involving stealing a firearm is punishable by up to 3 years in prison. Furthermore, grand theft of a firearm qualifies as a “serious felony” and will add a “strike” to the defendant’s record under California’s Three-Strikes Law. Any defendant who receives a third “strike” will serve a minimum of 25 years to a life prison sentence. 

If the stolen property is valued above $65,000 an additional 1 year will be added to the sentence. 

If the stolen property is valued above $200,000 an additional 2 years will be added to the sentence. 

If the stolen property is valued above $1,300,000 an additional 3 years will be added to the sentence.

If the stolen property is valued above $3,200,000 an additional 4 years will be added to the sentence. 

Next Steps If You Have Been Charged With Theft

Being convicted of theft can seriously harm a person’s life. Beyond the severe legal consequences such as incarceration or expensive fines, the social judgment from being labeled a “thief” can be extremely difficult to deal with. The best course of action to avoid these negative outcomes is to hire an experienced criminal defense attorney to advocate on your behalf. Southwest Legal employs a team of top-rated criminal defense attorney in Riverside County who have decades of experience defending those accused of theft. If you have been charged with theft, call Southwest Legal today for a free consultation and take the first step toward beating your case!