The old saying goes "Finders keepers, losers weepers." But in California, finders can be weepers too when they face charges for not returning lost property to its rightful owner.
Penal Code 485 PC -- California's law against appropriating (or misappropriating) lost property -- prohibits you keeping property that you find when there are clues identifying its true owner.1 You are not required to go to extremes to identify and contact the owner. But the law says you must make a reasonable attempt to do so.
If you find cash on the ground on a crowded sidewalk, you do not need to ask everyone in the vicinity if it is theirs. However, if you see the money fall out of a woman's purse...and pocket it instead of trying to return it to her...you violate the law.
If you find a wallet that contains a driver's license, you must attempt to return it and its contents to its owner. But let's say you find a wallet with no credit cards or other identifying information, but you find it at a party at someone's house. You should make an announcement or take it to the homeowner, knowing that the wallet's owner will likely realize it is missing and try to get it back.
If you find lost jewelry while on a hike or at the beach...and there are absolutely no clues as to whom it belongs...you are probably free to keep it. You are not required to post an ad in the paper, approach everyone in the area, or take any other "heroic" measures to try to return it to its rightful owner.
Penal Code 485 PC may be filed as an infraction, a misdemeanor or a felony, depending on
- the value of the property (if the value exceeds $950, it can be filed as misdemeanor or felony grand theft - if the value is $950 or less, it can only be filed as misdemeanor petty theft),
- the circumstances of the offense, and
- your criminal history.
If you are convicted of theft / appropriation of lost property as an infraction, you face a maximum $250 fine. If you are convicted of the misdemeanor you face up to one year in a county jail and a maximum $1,000 fine. If you are convicted of the felony, you face up to three years in the California state prison and a maximum $10,000 fine.2
Fortunately, our team of skilled defense lawyers knows the most effective legal defenses to help you fight your case. We can help explain that you didn't intend to keep the property, but were holding onto it in case clues surfaced as to the owner's identity. Or we can try to persuade the court that either
- you tried to contact the owner but were simply unsuccessful, or
- there was nothing you could reasonably do to identify the owner.
In this article, our California criminal defense attorneys3 will explain all of these issues and more by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Theft Laws; Penal Code 496 PC Receiving Stolen Property; Grand Theft; Petty Theft; Wobblers; Infractions; Misdemeanors; Felonies; Legal Defenses; Crimes of Moral Turpitude; How Convictions Affect Aliens and Immigrants; How Convictions Affect Professional Licenses in California; and How Felony Convictions Affect Teaching Credentials.
We're all familiar with the old saying, "finders keepers, losers weepers". While this may be the playground rule when we're kids, it's not the law that regulates us as adults. In fact, if you find lost property...and you can fairly easily determine who the owner is...you violate California's theft laws by not returning that property to its true owner.
Specifically, California Penal Code 485 PC states "One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft."
Basically this means that if you find someone else's property...and there are clues as to whom it belongs to...you'd better at least attempt to get it back to the rightful owner before you decide to keep it.
Possession plays a big role in a "theft of lost property" charge. There are two types of possession - actual and constructive. When you have "actual" possession of property it means that you physically possess the item. When you have "constructive" possession of property, it means that despite the fact that you are not in physical control of your property, it means you have a right to control it.
When you lose your property, you nevertheless retain constructive possession of it until someone else takes actual possession of that property. This actual possession may be legal or illegal, depending on
- the "finder's" state of mind at the time of the acquisition, and
- the surrounding circumstances.4
If the finder takes the property in order to return it to its true owner, the "taking" is legal.
If, however, the finder takes the property to keep for him/herself...or to give it or sell it to someone else...the issue turns on whether the finder can reasonably identify the true owner of the property. If there are clues that identify the owner...yet the finder does not make reasonable attempts to return the property to that owner...the taking is unlawful. If there are no clues, the finder is free to appropriate the lost property as his/her own.5
In April 2010, Brian Hogan found a phone on a stool in a bar. He asked some questions at the bar to see if the bartenders knew who it belonged to. After discovering that it was an Apple iPhone prototype (it was a 4G phone disguised in a 3G case), he made several attempts to contact Apple but was ignored.
At this point, it seems like Hogan had taken the necessary steps to contact the owner. He then took the property as his own.
At some point, he agreed to sell the phone to technology blog Gizmodo for $5,000. While checking out the phone, Hogan and Gizmodo discovered the identity of the true owner of the phone via the owner's Facebook account that was on the phone. The owner was Apple engineer Robert Powell.
Instead of contacting Powell, Hogan and Gizmodo completed their transaction, and Gizmodo posted videos and pictures of the next generation smartphone, revealing it before Apple did.
Based only on these details... since we obviously do not know the full story...it appears as though Hogan would, in fact, be guilty of appropriating lost property since he ultimately discovered that Powell owned the phone. Not only did Hogan fail to contact Powell, but he ultimately sold Powell's property.
It would also appear that Gizmodo would be liable for receiving stolen property. Penal Code 496 PC California's law against receiving stolen property is closely related to misappropriation of lost property. When the finder of the property gives or sells that property to another person, that new owner may be in violation of the law if he/she knows or reasonably should know that the property is stolen.
This case is currently under investigation by the San Mateo District Attorney's office.
There are a variety of legal defenses to Penal Code 485 PC that your California criminal defense attorney could argue on your behalf. The exact circumstances of your offense will determine which are applicable. The following are two of the most common that almost always apply to this charge.
Lack of knowledge
If you find lost property where there are no clues as to the owner's identity...and you have no reason to believe that his/her identity will ultimately be revealed...you are not guilty of a crime even if you keep the property.
As Rancho Cucamonga criminal defense attorney Michael Scafiddi6 explains, "This offense only applies to people who mis- appropriate lost property. If you can't reasonably tell who the owner is, you may keep it and should be acquitted of any wrongdoing."
Keep in mind that this law doesn't require you to do everything humanly possible to locate the true owner...just efforts that are reasonable and just. This is where the skill of a savvy California criminal defense lawyer comes in. He/she knows how to present the most persuasive arguments to convince prosecutors, judges and juries that you took the appropriate steps to contact the owner but were simply unable to do so.
No intent to permanently deprive the owner of his/her property
If you find lost property and take it, intending to use it for a certain period of time before returning it to its rightful owner, you are not guilty of this
California theft crime. Temporary deprivation does not amount to stealing.7
Depending on the exact circumstances, this type of action may subject you to criminal liability under different laws...and the owner may be able to sue you for monetary damages in a civil court...but you should not be held criminally liable for theft.
What's interesting about Penal Code 485 "appropriation of lost property" is that it can be filed as an infraction, a misdemeanor or a felony.
If the value of the property exceeds $950, the offense qualifies as grand theft. California's grand theft law is a wobbler which means that prosecutors may file it as either a felony or a misdemeanor, depending on
- the facts of the case, and
- your criminal history.
If convicted of the felony, you face up to three years in the California state prison and up to $10,000 in fines. If convicted of the misdemeanor, you face up to one year in a county jail and up to $1,000 in fines.8
If the property is equal to or less than $950, the offense is classified as petty theft. California's petty theft law is a misdemeanor, subjecting you to up to six months in a county jail and a maximum fine of $1,000.9
This offense is also a misdemeanor / infraction wobbler. If the circumstances of the case are not that serious...and you have little or no criminal history...the prosecutor could charge you with an infraction. If convicted of the infraction, you face a maximum $250 fine. Infractions do not subject offenders to jail time.10
And, unlike other California theft offenses, appropriation of lost property is generally not considered a crime of moral turpitude. As a result, a conviction for this offense should not subject aliens or immigrants to removal.11
However, if you are convicted of Penal Code 485 PC as a felony under California's grand theft law, you may face professional discipline, as certain convictions can affect professional licenses in California. This is the case, for example, with teachers, as a felony conviction for this offense will likely result in one's teaching credentials being revoked.12
This is why having a skilled California criminal defense attorney is so critical. A lawyer who has experience handling California theft crimes knows the most effective ways
- to fight the charges to secure an acquittal, and...when that's not possible...
- to negotiate for the misdemeanor or infraction charge.
Call us for help...
For questions about Penal Code 485 PC California's law against misappropriating lost property, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
To learn about Nevada theft laws, go to our page on Nevada theft laws.
1 Penal Code 485 PC - California's law against theft or appropriation of property. ("One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.")
2 See endnotes 8-10, below.
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4 3 Wharton's Criminal Law - Section 355 - Lost Property
5 2 Witkin California Criminal Law 3d (2000) Chapter 5, section 19 - Lost Property
6 Rancho Cucamonga criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
7 People v. Davis (1998) 19 Cal.4th 301, 305. ("The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession.")
8 California Penal Code 487 PC -- Grand theft defined. ("Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken [even pursuant to Penal Code 485 PC California's law against misappropriation of lost property] is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b). (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: (1)(A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250). (B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value. (2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250). (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period. (c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig. (2) A firearm.")
See also California Penal Code 489 PC -- Grand theft, punishment. ("Grand theft is punishable as follows: (a) When the grand theft [including theft under Penal Code 485 PC California's law against misappropriating lost property] involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.")
See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")
See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
9 90California Penal Code 488 PC -- Petty theft defined. ("Theft in other cases [other than those in Penal Code 487 PC, above] is petty theft [including theft under Penal Code 485 PC California's law against misappropriating lost property].")
See also California Penal Code 490 PC -- Petty theft; punishment. ("Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.")
10 California Penal Code 19.8 -- Infractions; classification of offenses; fines; effect of conviction. ("The following offenses are subject to subdivision (d) of Section 17 [classification as an infraction]: Sections 193.8, 330, 415, 485 [California's law against misappropriation of lost property], 490.7, 555, 602.13, 652, and 853.7 of this code; subdivision (c) of Section 532b, and subdivision (n) of Section 602 of this code; subdivision (b) of Section 25658 and Sections 21672, 25658. 5, 25661, and 25662 of the Business and Professions Code; Section 27204 of the Government Code; subdivision (c) of Section 23109 and Sections 12500, 14601.1, 27150.1, 40508, and 42005 of the Vehicle Code, and any other offense which the Legislature makes subject to subdivision (d) of Section 17. Except where a lesser maximum fine is expressly provided for a violation of any of those sections, any violation which is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250). Except for the violations enumerated in subdivision (d) of Section 13202.5 of the Vehicle Code, and Section 14601.1 of the Vehicle Code based upon failure to appear, a conviction for any offense made an infraction under subdivision (d) of Section 17 is not grounds for the suspension, revocation, or denial of any license, or for the revocation of probation or parole of the person convicted.")
11 Sheikh v. Holder (2010) 379 Fed.Appx. 697, 699-700. ("Theft offenses are categorically crimes involving moral turpitude only when the statute of conviction requires the "base, vile, or depraved" conduct of intending to permanently deprive the property owner. See, e.g., Alvarez-Reynaga v. Holder, 596 F.3d 534, 537 (9th Cir.2010); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir.2009). Section 485 does not require, by its plain language or as interpreted by California courts, an intent to permanently deprive an owner of property. See Cal.Penal Code § 485 (enumerated elements do not require intent to permanently deprive); Matter of B.H., No. GO30253, 2008 WL 2574476, ∗1, ∗3 (Cal.App. 4th. June 27, 2008) (affirming a § 485 conviction where intent to permanently deprive was neither identified nor established as an element of the crime).FN2 Therefore, a § 485 conviction is not categorically a crime involving moral turpitude. FN2. With limited exceptions not applicable here, "an opinion of a California Court ... that is not certified for publication or ordered published must not be cited or relied on by a court or party in any other action." Cal. Rule of Court 8.1115. The unpublished case cited here, however, is not relied on as authority, but instead is used only to illustrate that § 485 does not require an intent to permanently deprive an owner of property. See Castillo-Cruz, 581 F.3d at 1161 n. 9 ("unpublished cases are pertinent for showing that there is a 'realistic probability' that [a statute of conviction] has been and will be applied to conduct falling outside of the generic definition of a crime involving moral turpitude.") (internal citation omitted).") This same rationale is used in citing this case as the illustration for why a conviction for Penal Code 485 PC California's law against misappropriating lost property should not subject aliens or immigrants to removal.
12 California Education Code 44435 -- Conviction of certain felonies as grounds for revocation by county board of education. ("Upon the becoming final of the conviction of the holder of a certificate issued by a county board of education of a violation or attempted violation of any one or more of Penal Code Sections 187 to 191, 192 insofar as said section relates to voluntary manslaughter, 193, 194 to 232, inclusive, 244, 245, 261 to 267, inclusive, 273a, 273f, 273g, 278, 285 to 288a, both inclusive, 424, 425, 484 to 488 [Penal Code 485 PC is California's law against misappropriating lost property], both inclusive, insofar as said sections relate to grand theft, 503 and 504, or of Penal Code Section 272, the county board of education shall forthwith revoke the certificate.")
See also California Education Code 44424 -- Conviction of crime; plea of nolo contendere; denial or termination of employment. ("(a) Upon the conviction of the holder of any credential issued by the State Board of Education or the Commission on Teacher Credentialing of a violation, or attempted violation, of a violent or serious felony as described in Section 44346.1, or any one or more of Penal Code Sections 187 to 191, inclusive, 192 insofar as this section relates to voluntary manslaughter, 193, 194 to 217.1, inclusive, 220, 222, 244, 245, 261 to 267, inclusive, 273a, 273ab, 273d, 273f, 273g, 278, 285 to 288a, inclusive, 424, 425, 484 to 488 [Penal Code 485 PC is California's law against misappropriating lost property], inclusive, insofar as these sections relate to felony convictions, 503 and 504, or of any offense involving lewd and lascivious conduct under Section 272 of the Penal Code, or any offense committed or attempted in any other state or against the laws of the United States which, if committed or attempted in this state, would have been punished as one or more of the offenses specified in this section, becoming final, the commission shall forthwith revoke the credential. (b) Upon a plea of nolo contendere as a misdemeanor to one or more of the crimes set forth in subdivision (a), all credentials held by the respondent shall be suspended until a final disposition regarding those credentials is made by the commission. Any action that the commission is permitted to take following a conviction may be taken after the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence and the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code. (c) The commission shall revoke a credential issued to a person whose employment has been denied or terminated pursuant to Section 44830.1. (d) Notwithstanding subdivision (a), a credential shall not be revoked solely on the basis that the applicant or holder has been convicted of a violent or serious felony if the person has obtained a certificate of rehabilitation and pardon pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.")