In California, a theft is committed when a person takes someone else’s property without their consent. To be guilty, the person must have the intent to permanently deprive the true owner of his or her possession of the property.
In general, there are two types of theft charges: petty theft and grand theft. The appropriate charge in a case will depend on the value or type of property taken.
The distinction between petty theft and grand theft can be an important one. Petty theft can be charged as an infraction, a misdemeanor, or a felony, depending on whether the defendant has previous theft-related convictions. While grand theft can be charged as a misdemeanor or a felony, depending on the facts of the case.
This article explores petty theft law in California, and what it means for someone to be charged with it.
Elements of Theft in California
To be convicted of a crime in California, several facts must be proven. These are called “elements” of the crime. In theft offenses, the elements are provided by Penal Code section 484. Put simply, the elements are as follows:
- You took possession of property owned by someone else without their permission,
- You had the intent to permanently deprive the owner of their possession of it, and
- You moved the property (even a small distance) and kept the property for a period of time (even if that time was brief).
The prosecution has the burden of proving each of these elements. If they cannot be proven to be true, beyond a reasonable doubt, you must be found not guilty.
“Taking” Defined
The taking for purposes of theft offenses occurs when one person gains actual possession of someone else’s property. The taking must be against the owner’s will or without his or her consent.
A theft offense does not require that the property was taken by force or as the result of a trespass onto the owner’s property.
Property Value
A person can be charged with petty theft even if the property’s value is very small. The property’s value generally only comes into play when determining the degree of the charge and potential penalty.
Example
Items such as an empty carton of cigarettes, a fictitious check, and even an illegal lottery ticket have all been held to support a charge for theft based on the value of the paper the item was printed on.
Ownership of the Property
To be guilty of a theft offense, the property taken must belong to another person. The other person can be either an individual or a business. A person can be charged with theft for stealing from their own business.
The question of who property “belongs” to is usually concerned with who had a right to possess the property at the time it was taken—not necessarily who owned the property. This distinction can be important if the defendant reasonably believed they had a right to possess the property at the time of the alleged theft.
Example
When two people co-own property and have an equal right to possess it, a theft usually cannot occur if one of them then takes the property. The taking, however, might constitute a different crime, like embezzlement, or a breach of contract.
Intent
Usually, the prosecution must prove the defendant intended to permanently deprive another person of their possession of the property. But that element can also be met by proving that the defendant intended to take it temporarily, but for an unreasonable time.
An unreasonable time, for these purposes, is enough time that would cause the owner to be deprived of a major portion of the property’s value or enjoyment.
The intent to deprive another person of possession must be present at the time the property is taken. This can be proved circumstantially through the actions or inactions of the defendant before, during, or after the taking.
Example
A defendant entered a department store and removed a shirt from a store shelf, carried it to the sales counter, and claimed he owned the shirt. He then demanded a refund in exchange for returning the shirt. The defendant’s intent to claim ownership of the shirt, and condition return of the shirt upon payment of a refund, evidenced an attempt to permanently deprive the store of its property.
Moving the Property
A taking of property alone is insufficient to constitute a theft. Rather, there must be some effort by the thief to carry away or move the property.
A theft will exist even if the property only moves a small amount, and the defendant only needs to exercise control over the property momentarily. The movement of property occurs even in those situations where a defendant attempts to remove items from a store but is apprehended before they can escape.
Petty Theft vs. Grand Theft
In California, the crime of theft is defined by Penal Code section 484. It is divided into two degrees: petty theft and grand theft. The elements of the crime are generally the same, regardless of whether the theft is classified as petty theft or grand theft.
To constitute grand theft, the prosecution must prove one of the following:
- The property was worth more than $950.00.
- The property was taken on multiple occasions from an employer by an employee and the combined amount exceeded $950.00 in a 12-month period.
- The property was an automobile.
- The property was a firearm.
- The property was taken from the victim’s person (while the victim had actual physical possession of it).
- The property was one of several enumerated types of food or animals that exceeded $250.00.
The value of an object, for these purposes, is the fair market value of the property on the date of the theft. The fair market value of an object is the amount that it could have been sold for.
Penal Code, § 459.5 (Shoplifting)
Some burglaries and petty theft offenses can be reduced to a crime called “shoplifting.” Shoplifting occurs when a person enters a commercial establishment, when they are open for business, with the intent to steal property worth less than $950.00.
Put simply, a theft offense can be treated as shoplifting if the following elements are met:
- A person entered a commercial establishment;
- When the person entered the establishment, they had the intent to commit a theft inside;
- The establishment was open during regular business hours; and
- The value of the property stolen (or intended to be stolen) did not exceed $950.00.
If these elements are met, the crime must be charged as shoplifting. It cannot be charged as a petty theft or a burglary.
But, if these elements are not met and the defendant entered a commercial establishment with the intent to steal, the crime can be treated as a burglary.
Penalties for Petty Theft and Shoplifting
First-Time Offenders
Penal Code sections 490 and 490.1 provide the penalties for most petty theft offenses in California. The range of penalties will depend on the value of the property and whether the offender has certain prior convictions.
If the offender has no prior convictions and the value of the property is worth less than $50.00, the punishment is as follows:
| Code Section | Penal Code, §§ 490, 490.1 |
| Violation Type | Can be charged as an infraction or a misdemeanor (depending on the prosecutor’s discretion). |
| Custody Time | If charged as an infraction, there will be no custody time. If charged as a misdemeanor, up to six months in county jail. |
| Additional Consequences |
|
If, however, the property is worth more than $50.00, the punishment is as follows:
| Code Section | Penal Code, § 490 |
| Violation Type | Misdemeanor. |
| Custody Time | Up to six months in county jail. |
| Additional Consequences |
|
Shoplifting
Shoplifting is usually charged as a misdemeanor, unless the defendant has previously been convicted of a “super strike” listed below. If the defendant was previously convicted of a super strike, the crime can be punished as either a misdemeanor or a felony, depending on the prosecutor’s discretion. This type of crime is called a wobbler.
The prior convictions (often called “super strikes”) that make shoplifting eligible for felony sentencing are as follows:
- A prior conviction for any registrable sex offense,
- A prior conviction for any homicide or attempted homicide offense,
- A prior conviction for solicitation to commit murder,
- A prior conviction for assault with a machine gun on a peace officer or firefighter,
- A prior conviction for possession of a weapon of mass destruction, or
- A prior conviction for any serious or violent felony offense punishable in California by life imprisonment or death.
If none of these prior convictions apply, the punishment is as follows:
| Code Section | Penal Code, §§ 19, 459.5 |
| Violation Type | Misdemeanor |
| Custody Time | Up to six months in county jail. |
| Additional Consequences |
|
If, however, the defendant has been previously convicted of a super strike, the punishment is as follows:
| Code Section | Penal Code, §§ 19, 459.5, 1170 |
| Violation Type | Can be charged as a misdemeanor or a felony (depending on the prosecutor’s discretion). |
| Custody Time | If charged as a misdemeanor, up to six months in county jail. If charged as a felony, up to three years in county jail. |
| Additional Consequences |
|
Petty Theft With a Prior
If the defendant has prior convictions, the range of penalties will depend on the type of prior conviction and whether served a term of imprisonment for it. If the defendant’s only prior conviction was for a theft offense and they served no time in custody for that offense, the punishment is as follows:
| Code Section | Penal Code, § 490 |
| Violation Type | Misdemeanor |
| Custody Time | Up to six months in county jail. |
| Additional Consequences |
|
If, however, the defendant previously experienced one of the convictions listed below, the crime can be punished as either a misdemeanor or a felony, depending on the prosecutor’s discretion. This type of crime is called a wobbler.
The disqualifying prior convictions that make petty theft eligible for felony sentencing are as follows:
- A prior theft-related offense for which the defendant previously served a term of imprisonment,
- A prior conviction for which the defendant is required to register as a sex offender,
- A prior serious or violent felony conviction, or
- A conviction involving theft from an elder or a dependent adult.
If none of these apply, the defendant will be charged with a misdemeanor and can face up to six months in county jail, as described above. But, if any of them apply, the defendant can be charged as follows:
| Code Section | Penal Code, §§ 18, 490, 666 |
| Violation Type | Can be charged as a misdemeanor or a felony (depending on the prosecutor’s discretion). |
| Custody Time | If charged as a misdemeanor, county jail for up to one year. If charged as a felony, state prison for up to three years. |
| Additional Consequences |
|
Impact on Undocumented Immigrants
Convictions for misdemeanor petty theft or shoplifting are viewed as crimes of moral turpitude. This means that a conviction for petty theft or shoplifting will serve as a bar to reentering the United States without special permission from the attorney general for a period of five years.
Potential Defenses to a Theft Charge
The three main defenses to a petty theft charge are:
- Consent. If the owner of the property consented to the defendant taking it, a theft has not occurred. The consent, however, can only be granted by someone with the mental capabilities to do so.
- Mistake of Fact. If the defendant mistakenly believed that he or she owned the property or was entitled to possess the property, no theft has occurred. The mistake does not need to be reasonable, but it should be supported by evidence.
- Actual Innocence. If the defendant did not take or attempt to take the property—for instance, if the police identified the wrong suspect—the defendant is not guilty of theft.
Importantly, the mistake-of-fact defense does not permit the defendant to forcibly take property to satisfy an outstanding debt. Nor can it be used when the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.
Let Me Help
If you have been charged with either petty theft or shoplifting, the facts of your case matter. Some facts can negate elements of the crime and ultimately result in dismissal of the charges.
At a minimum, there may be mitigating circumstances that work to reduce or minimize the penalties you now face. An experienced criminal attorney can help by arguing for those mitigating circumstances.
It is often a good idea to speak to a qualified and caring criminal defense attorney to give yourself the greatest protection possible.
If you or someone you know has been charged with the crime of petty theft or shoplifting, call Los Angeles Criminal Defense Long Beach Criminal Lawyer for honest and effective legal advice: 562-304-5121
References [H3]
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Penal Code, § 484; People v. Jaso (1970) 4 Cal.App.3d 767, 771 [“Theft requires a specific intent to permanently deprive the owner of his property.”].
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Penal Code, § 486 [“Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.”];
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Penal Code, § 487; People v. Cuellar (2008) 165 Cal.App.4th 833, 837.
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Penal Code, §§ 490, 490.1, 666.
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Penal Code, §§ 486, 487, 489.
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CALCRIM No. 1800 [defining theft by larceny]; Penal Code, § 484 [“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 . . . is guilty of theft . . . .”]; People v. Torres (1962) 201 Cal.App.2d 290, 294; Callan v. Superior Court of San Mateo County (1962) 204 Cal.App.2d 652, 667.
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Patterson v. New York (1977) 432 U.S. 197, 210.
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People v. Fountain (1949) 91 Cal.App.2d 158, 161 [“The corpus delicti is established when there is proof of (1) a person from whom the property may be taken, (2) an intent to take such property against the will of the owner, and (3) an act performed tending to accomplish the foregoing.”].
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People v. Franco (1970) 4 Cal.App.3d 535, 542 [“In order that property may be the subject of larceny, it is necessary only that it possess some intrinsic value, however, slight.”].
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People v. Franco (1970) 4 Cal.App.3d 535, 542.
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People v. Cuellar (2008) 165 Cal.App.4th 833.
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People v. Mackinley (1858) 9 Cal. 250, 250–251 [a person cannot be convicted of larceny for taking his or her own property].
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See, e.g., People v. Sobiek (1973) 30 Cal.App.3d 458, 468.
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People v. Moore (1970) 4 Cal.App.3d 668, 670–671; see, e.g., People v. Thompson (1958) 158 Cal.App.2d 320, 323 [“The carrying of the records through the checkstand constituted an asportation of the goods, as the act effectively removed them from the store’s possession and control, even if only for a moment.”].
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People v. Foss (1936) 7 Cal.2d 669, 670; but see People v. Sobiek (1973) 30 Cal.App.3d 458, 468.
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People v. Avery (2002) 27 Cal.4th 49, 58.
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People v. Avery (2002) 27 Cal.4th 49, 58.
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Penal Code, § 20 [“In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”]; In re Jesus O. (2007) 40 Cal.4th 859, 867 [“Because a crime requires a union of act and intent, under the Eduardo D. facts, if the perpetrator had no intent to steal while the property was still on the victim’s person, the perpetrator committed an assault followed by a theft, not a grand theft from the person.”].
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People v. Shannon (1998) 66 Cal.App.4th 649, 654–656 (1998) [theft complete when defendant placed shirt in bag and walked to counter with intent to fraudulently receive money by exchanging the stolen item].
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People v. Meyer (1888) 75 Cal. 383, 385.
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People v. Quiel (1945) 68 Cal.App.2d 674, 679 [“The fact that the thief is frustrated in his attempt to carry stolen property away, or that he may change his mind immediately after the theft, because he concludes that the property is of insufficient value to warrant him in retaining it, does not relieve him of the consequence of the theft.”].
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People v. Tijerina (1969) 1 Cal.3d 41, 47 [“His subsequent failure to remove the coat from the store did not render the theft incomplete.”].
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Penal Code, §§ 487, 488.
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Penal Code, § 487, subd. (a).
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Penal Code, § 487, subd. (b)(3).
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Penal Code, § 487, subd. (d).
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Penal Code, § 487, subd. (d).
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Penal Code, § 487, subd. (c); People v. Geter (2012) 202 Cal.App.4th 1430, 1434.
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Penal Code, § 487, subd. (b).
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People v. Renfro (1967) 250 Cal.App.2d 921, 924 [“the fair market value of personal property is the test to be applied in order to determine whether the theft of such property constitutes grand theft or petty theft”].
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Penal Code, § 459.5.
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Penal Code, § 459.5.
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Penal Code, § 459.5, subd. (b).
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Penal Code, § 459.5, subd. (a).
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Penal Code, § 459.5, subd. (a).
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Penal Code, §§ 290, subd. (c), 459.5, subd. (a), 667, subd. (e)(2)(C)(iv).
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See Penal Code, § 290, subd. (c).
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See Penal Code, §§ 187–191.5.
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See Penal Code, § 653f.
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See Penal Code, § 245, subd. (d)(3).
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See Penal Code, § 11418, subd. (a)(1).
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See Penal Code, §§ 490,
490.1, 666. -
Penal Code, §§ 490, 666.
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Penal Code, § 666.
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Juarez v. Mukasey (9th Cir. 2008) 530 F.3d 1020, 1022 [“Petty theft is a crime involving moral turpitude . . . .”]; see 8 U.S.C. § 1182(a)(2)(A)(i)(I).
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8 U.S.C. § 1182(a)(2)(A)(i).
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People v. Davis (1893) 97 Cal. 194.
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People v. Catley (2007) 148 Cal.App.4th 500 [68-year-old with Parkinson’s disease was not capable of consenting to transfer of money to the defendant].
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People v. Photo (1941) 45 Cal.App.2d 345, 353 [if someone in good faith takes the property of another, believing it to be legally his or her own, or that he has a legal right to its possession, he is not guilty of larceny].
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People v. Tufunga (1999) 21 Cal.4th 935.
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People v. Fenderson (2010) 188 Cal.App.4th 625.
