Theft Crimes2018-09-14T18:50:19+00:00

Have You Been Charged With A Theft Crime?

How to Avoid a Conviction for Theft


In California, theft is prosecuted under several statutes, depending on the amount at issue and how the theft was accomplished.

Grand Theft


If the defendant is accused of stealing property valued over $950, the offense will be prosecuted as grand theft under Penal Code § 487(a).

The prosecutor will have to prove the following elements:

  • The defendant took by theft money, labor, real property, or personal property of the victim
  • The value of the property was greater than $950

Penal Code § 487(a) is a “wobbler,” an offense that can be charged as either a misdemeanor or felony in the discretion of the prosecutor.

If charged as a misdemeanor, the offense is punished by a jail sentence up to one year in county jail.

If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.  Felony probation can be granted with a county jail term of up to one year.

Under federal immigration law, this offense is a crime involving moral turpitude.

Grand Theft of A Firearm


If the property that was stolen was a firearm, the offense will be charged as grand theft of a firearm under Penal Code § 487(d)(2), regardless of the monetary value of the firearm.

The prosecutor will have to prove the following elements:

  • The defendant took by theft a firearm from the victim

This offense is a felony, regardless of the value of the firearm.  The offense is punished by sixteen months, two years, or four years in state prison.  If felony probation is granted, the punishment can include up to one year in county jail.

Grand theft of a firearm is considered a serious felony and can result in a “strike.”  A conviction will result in the loss of the right to own a firearm and the right to vote.

Under federal immigration law, this conviction can result in deportability because it involves a firearm.  The offense is also a crime involving moral turpitude and can qualify as an aggravated felony if the sentence is at least one year.

Grand Theft of An Automobile


If the property taken was an automobile, the offense will be charged as grand theft of an automobile (commonly known as “grand theft auto”) under Penal Code § 487(d)(1).

The prosecutor will have to prove the following elements:

  • The defendant took by theft an automobile

If the value of the automobile was greater than $950, the offense is a wobbler that can be charged as either a misdemeanor or felony.

If charged as a misdemeanor, the offense is punished by up to one year in county jail.

If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.

If the value of the automobile was $950 or less, the offense is a misdemeanor punished by up to 180 days in county jail.

Under federal immigration law, the offense is a crime involving moral turpitude and may be an aggravated felony if a sentence longer than one year is imposed.

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Burglary

Under Penal Code § 459, burglary is the entry of a structure with the intent to commit a felony inside.

First Degree Burglary


First degree burglary, or “residential burglary,” is burglary of a home or inhabited dwelling.  

To prove first degree burglary, the prosecutor must prove the following elements:

  • The defendant entered an inhabited building or dwelling
  • When the defendant entered, he or she had the specific intent to either: 1) commit the crime of burglary, or 2) steal and take away property belonging to another and permanently deprive that person of the property

First degree burglary is always a felony.  The offense is punished by two, four, or six years in state prison.  Felony probation is available. The offense is considered a serious felony and a “strike.”

Under federal immigration law, first degree burglary is a crime involving moral turpitude.

Second Degree Burglary


Any burglary that is not first degree burglary is second degree burglary.

To prove second degree burglary, the prosecutor will have to prove the following elements:

  • The defendant entered a building
  • When the defendant entered, he or she had the specific intent to either: 1) commit the crime of burglary, or 2) steal and take away property belonging to another and permanently deprive that person of the property

Second degree burglary is a wobbler.  If charged as a misdemeanor, the offense can be punished by up to one year in county jail. If charged as a felony, it can be punished by sixteen months, two years, or three  years in county jail.

If charged as a felony, this offense qualifies as a strike.

Under federal immigration law, this offense—whether charged as a misdemeanor or felony—is a crime involving moral turpitude.  

Petty Theft


Penal Code § 488 defines petty theft as stealing property valued at $950 or less.  This offense is a misdemeanor; however, a second offense can be charged as a felony under Penal Code § 666, petty theft with a prior.

The prosecutor must prove the following elements:

  • The defendant stole, took, or carried away property belonging to someone else
  • The property had a value of $950 or less

Petty theft is a misdemeanor with a punishment of up to 180 days in county jail.  The offense is a crime involving moral turpitude under federal immigration law.

Shoplifting


Shoplifting is a specific type of petty theft.  Under Penal Code § 459.5, shoplifting is entering a commercial establishment during business hours with the intent to commit petty theft.  It is not necessary that the defendant actually accomplish a theft.

The prosecutor must prove the following elements:

  • The defendant entered a commercial establishment during regular business hours
  • When he or she entered, the defendant had the specific intent to commit larceny
  • The value of the property to be taken was $950 or less

Shoplifting is a misdemeanor, with a punishment of up to 180 days in county jail.

However, shoplifting is a wobbler that can be charged as a misdemeanor or felony if the defendant has a prior conviction for certain serious crimes listed in Penal Code § 667(e)(2)(C)(iv) or requiring registration under Penal Code § 290(c).  If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.

Under federal immigration law, the offense is a crime involving moral turpitude.

Embezzlement


Under Penal Code § 503, embezzlement is the stealing or misappropriation of property entrusted to the defendant by the rightful owner.

The prosecutor will have to prove the following elements:

  • There was a relationship of trust and confidence between the defendant and the victim
  • As a part of that relationship, the defendant accepted property entrusted to him or her by the victim
  • The defendant appropriated or converted the property to his or her own use with the specific intent to deprive the victim of the property.

If the value of the property was $950 or less, the offense is a misdemeanor.  If the value of the property was greater than $950, or the property was an automobile or firearm, the offense can be charged as either a misdemeanor or felony.

If charged as a misdemeanor, the offense is punished by up to one year in county jail.

If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.

The offense is a crime involving moral turpitude under federal immigration law.

Receiving Stolen Property


Under Penal Code § 496, receiving stolen property occurs when the defendant buys or receives goods that he or she knew was stolen.  

The prosecutor must prove the following elements:

  • The defendant bought, received, concealed, sold, withheld, or aided in concealing, selling, or withholding, property that had been stolen or obtained by theft or extortion
  • At the time the defendant did so, the defendant knew the property was stolen or obtained by theft or extortion

If the value of the property was $950 or less, the offense is a misdemeanor.  If the value of the property was greater than $950, the offense can be charged as either a misdemeanor or felony.

If charged as a misdemeanor, the offense is punished by up to one year in county jail.

If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.

Under federal immigration law, the offense is a crime involving moral turpitude.

Robbery


Under Penal Code §§ 211 and 212.5(a), robbery is a type of theft in which the defendant forcibly takes property from the victim’s possession.

The prosecutor will have to prove the following elements:

  • The victim had possession of personal property
  • The defendant took that property from the victim or the victim’s immediate presence
  • The property was taken against the victim’s will
  • The defendant took the property by force or fear
  • The defendant acted with the specific intent to permanently deprive the victim of the property

Robbery can be charged as either first degree robbery or second degree robbery.  Both are felonies. First degree robbery is any robbery in an inhabited structure;, the robbery of a driver or passenger of a bus, taxi, or other similar vehicle; or the robbery of a person using an ATM or a person who just used an ATM and is still near the machine.  All other robberies are of the second degree.

First degree robbery is punished by three, four, or six years in state prison.  

Second degree robbery is punished by two, three, or five years in state prison.

Robbery is considered a serious and violent felony, and a “strike.”  The offense is a crime involving moral turpitude and may be an aggravated felony if the sentence imposed is at least one year.

Carjacking


Under Penal Code § 215, carjacking is the robbery of a vehicle.

The prosecutor will have to prove the following elements:

  • The defendant feloniously took a motor vehicle from the possession or immediate presence of the victim
  • The victim was the driver or passenger of the vehicle
  • The vehicle was taken  against the victim’s will
  • The vehicle was taken by force or fear
  • the defendant had the intent to either permanently or temporarily deprive the victim of the vehicle

Carjacking is a felony, punished by three, five, or nine years in state prison.

The sentence can be increased based on aggravating factors, such as injury to a victim, use of a firearm, kidnapping, or commission of the carjacking to benefit a gang.

The offense is considered a serious and violent felony, and is a “strike.” Under federal immigration law, the offense is a crime involving moral turpitude and an aggravated felony.

Proposition 47


Proposition 47 reduced certain felonies to misdemeanors, including felony burglary, receiving stolen property, check fraud, grand theft firearm or grand theft auto, if the value of the property at issue was $950 or less.  If you were convicted of any of those offenses prior to the passage of Proposition 47, you may be eligible to have your conviction or sentence reduced under Proposition 47. Our criminal defense attorneys can review the records in your case to determine whether you are eligible, and can petition the court to reduce your sentence or correct the records in your case.

Defenses


  • Ownership: All theft offenses require that you take property belonging to another.  If you own the property, you cannot be guilty of theft.
  • Mistake: Theft offenses generally require proof that you knew the property belonged to the victim when you took it.  If you had a reasonable, good-faith belief that you owned the item, you are not guilty of theft. For instance, if you went to your friend’s house because they failed to return a lawnmower they borrowed from you, and you took a lawnmower of the same model home with you because you believed it was your lawnmower, you would not be guilty of theft, even if your friend could prove he owned that particular lawnmower.  However, if instead you took a lawnmower that was much newer and more expensive than the one you loaned to your friend, you would likely be found guilty of theft because the jury could find that you did not have a good-faith belief that the lawnmower you took home was the same one you had loaned to your friend.
  • Intent: Most theft offenses require proof of a specific intent. For instance, shoplifting requires the specific intent to steal something at the time you entered the business.  If you entered the business and later decided to steal something, you would not be guilty of shoplifting.
  • False accusations:  Claims of theft can arise after false accusations.  Common false accusations include claims of theft after giving the property as a gift or claiming ownership of property that belongs to the accused.

Next Steps


  • Do not speak to the police.  If police try to question you, politely but firmly tell them that you do not wish to speak to them and that you are invoking your constitutional rights to remain silent and to have an attorney present during any questioning.
  • Do not consent to a search.  Politely but firmly tell police that you do not consent to a search but will not interfere if they return with a search warrant.  Even if you think a search would show that you do not have the property at issue, the police may discovery an item similar to the one at issue, the accuser may have claimed you stole something that your accuser knew was in your home, or the police may not have been forthright about the item for which they are looking.
  • Do not attempt to return property.  If you believe you have the property at issue, and you mistakenly believe it belonged to you, or simply want to return the property to avoid a potential criminal case, do not attempt to return the property to the police or the victim without first consulting a criminal defense attorney.  Returning the property does not automatically end the case against you. An attorney can determine the best way to return the property without putting you in legal jeopardy.
  • Contact an experienced criminal defense attorney to represent you in your California theft case.  Call our office today at 877-375-8188 for a FREE case evaluation.

Resources

  • California Court Proposition 47 FAQ Page: http://www.courts.ca.gov/documents/Prop47FAQs.pdf