9 Things You Didn’t know About Petty Theft Charges

CA Penal Code Sections 484 & 488

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Overview of Penal Code 484 & 488

woman shoplifting

California Penal Code Sections 484 and 488 — 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):
  • automobile
  • firearm
  • horse
  • fruit/nuts worth more than $250
  • fish/shellfish/aquacultural products worth more than $250 when taken from a commercial fishery/research operation

Except as listed above, if the value of the stolen property exceeds $950, the theft is considered to be “grand theft” pursuant to California Penal Code Section 487

Example: 

A bank patron placed her purse and iPhone on the table next to a bank teller window and went to make a deposit at the window.  She planned to come right back for her items, but the defendant quickly walked up and grabbed the iPhone, walking out the door.  When the patron came right back and could not find her phone, she notified security.  The bank cameras revealed that defendant was the thief.  The defendant can be charged with petty theft, as he intentionally deprived the bank patron of her phone, which value is no more than $300. 

How Does the Prosecutor Prove Petty Theft Charges?

To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements1:

  • The defendant committed theft2;
  • The property’s value was $950 or less3.

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:

Theft by False Pretense (Penal Code Section 484):

  • 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.

Example:

A man went into an antique shop and falsely claimed that he is the city mayor’s brother and that he wanted to buy a watch as a gift for the mayor.  Excited that the mayor’s brother wants to buy a watch from his shop, the owner did not even check the man’s identification when the man used a credit card to purchase the most expensive watch at the store valued at $850.  It turned out the man was a thief and was not at all related to the mayor.  He stole the credit card and purchased the watch using the stolen card.  The man can be charged with petty theft by false pretenses, because he used false pretenses to obtain possession and ownership of the watch.

The man can also be charged with violation California’s Penal Code Section 484(e), which prohibits the selling, transferring or acquiring a credit or debit card of another without their consent.

Theft by Larceny (Penal Code Section 484) aka “Shoplifting”:

A majority of petty theft cases involve theft by “larceny,” also known as shoplifting.  Larceny occurs when:

  • 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 brief.

Example:

A man went into a department store, intending to steal a clothing item for his girlfriend and not pay for it.  He took a blouse off the shelf and tried to conceal it in his jacket, but then he saw a security guard passing by, so he placed the blouse back.  If the security guard had noticed the man trying to conceal it before he placed it back, the man can be charged with shoplifting even if he did not actually complete the act of stealing.  All that is required is the intent to take and deprive the owner of it plus moving the property even a small distance and keeping it for any period of time no matter how brief.

Theft by Trick (Penal Code Section 484):

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 trick:

  • 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 property;
  • You kept the property for any length of time; AND
  • The owner did not intend to transfer ownership of the property.

Example:

A woman wanted to buy a pair of jeans but did not want to pay the full price for them.  She took a tag price tag from another pair of jeans that were on sale and witched it to make it look like the jeans were on sale.  She presented the wrong price tag with the jeans so that she can pay a discounted price for them.  The woman can be charged with theft by trick.

Theft by embezzlement (Penal Code, §§ 484, 503):

Theft by embezzlement occurs when:

  • An owner entrusted his/her property to you;
  • The owner did so because he/she trusted you;
  • You fraudulently converted/used that property for your own benefit; AND
  • When you converted/used the property, you intended to deprive the owner of the property or its use.

Example:

A woman was a store clerk at a department store.  At the end of the day after counting up the cash register receipts, she pocketed some of the cash and took it home that evening.  She can be charge with theft by embezzlement, because she was entrusted with the cash but decided to keep the cash for herself.

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What is the Difference Between Petty Theft and Grand Theft?

Petty Theft

Grand Theft

 
  • The property stolen was worth $950 or less
  • 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 taken was NOT any of the following type of property:
  • automobile
  • firearm
  • horse
  • fruit/nuts worth more than $250
  • fish/shellfish/aquacultural products worth more than $250 when taken from a commercial fishery/research operation
  • Usually charged as a misdemeanor.  If convicted, the following penalties may apply:
  • Probation
  • Up to six 6 months in county jail, and/or
  • A fine of up to $1,000
  • The property stolen was worth more than $950
  • 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 stolen was an automobile or firearm
  • The property stolen was fruit/nuts/ worth more than $250
  • The property stolen was fish, shellfish, or aquacultural products worth more than $250 if taken from a commercial fishery or research operation
  • May be charged as a misdemeanor or a felony.
  • If charged as a misdemeanor: up to one (1) year in county jail
  • If charged as felony: up to 16 months, 2 years, or 3 years in state prison

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How Can You Fight Petty Theft Charges?

The most common defenses that a skilled criminal defense attorney can put forward to defend a charge of petty theft are as follows:

No Intent to Steal: 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.

Consent From the Owner: If the owner of the property that you allegedly stole gave you permission to take the property, you are not guilty of petty theft.

Example: 

Peter’s neighbor gave him permission to use his lawnmower over the weekend.  However, after Peter went over to the neighbor’s front lawn and took the lawnmower to mow his lawn, the neighbor accused Peter of stealing the lawn mower from him.  Peter can use the defense of consent to show that he had the owner’s permission to use the lawn mower and that his intent was not to steal it, but only to borrow it.

Belief that the Property Belonged to You: 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 yours.

Example:

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.

You Were Falsely Accused: 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.

What Are The Penalties, Punishment and Sentencing Guidelines for Petty Theft?

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. 4

Related Offenses

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:

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.

Enhancements

Theft Enhancement Pursuant to Penal Code Section 12022.6(a):

If there are multiple charges of theft, whether grand or petty theft, and the aggregate loss exceeds any of the statutory minimums in California Penal Code Section 12022.6(a), and the thefts arise from a common scheme or plan, an additional prison term may be imposed.

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.5

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Footnotes

  1. 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.” []
  2. 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 []
  3. 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 []
  4. 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). []
  5. 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]. []