Petty Theft & Shoplifting Laws

California Penal Code 484 & 488 PC

California law defines theft as the unlawful taking of another's property. California petty theft (shoplifting) will be charged when that property is valued at $950 or less. The crime (which is most commonly based on a shoplifting offense) can be committed in one of four ways:

1. by larceny (stealing and carrying away another's property without consent. This is the most typical form of petty theft, usually seen in a shoplifting prosecution.)



2. by trick (for example, changing the price tag on an item to pay a lesser amount for it)



3. by embezzlement (this occurs when you decide to deprive another of something after it was entrusted to you. For example, if your boss, the owner of the retail store that you work for, gives you some merchandise to put in the storage room -- and instead you put it in your bag to take home -- you have embezzled the merchandise), and



4. by false pretenses (making false representations to obtain possession and title to money, labor, personal property or land).

These were once separate offenses. But they have been consolidated under the umbrella of "theft" in California Penal Code 484 PC and 488 PC. Although these are all ways to commit petty theft or shoplifting, the law makes no true distinction among them. In fact, the jury doesn't even need to agree as to which particular form of theft you are guilty of before they can convict you.

In order to make California petty theft (and for that matter, theft in general) seem less "legal" and more understandable, our Los Angeles criminal defense lawyers will explain the following:

1. What is the Difference Between California Petty Theft and California Grand Theft?

2. How Does the Prosecutor Prove that I Committed a California Petty Theft?

3. Unusual Petty Theft Situations

4. What are the Defenses to Shoplifting Under California Penal Code 484 & 488?

5. Penalties, Punishment, and Sentencing for California Petty Theft

If after reading this article, you have additional questions, we invite you to contact us.

1. What is the Difference Between California Petty Theft and California Grand Theft?

There are two basic differences between California petty theft under Penal Code 488 PC and California grand theft under Penal Code 487.(1) the value of the property or services that were stolen, and (2) the punishment.

The first distinction is critical. Petty theft (often interchangeably referred to as shoplifting) only pertains to items or services that are valued at $950 or less. Grand theft only refers to stolen property or services that are valued above $950.

With respect to the second distinction, shoplifting is always a misdemeanor. Grand theft, on the other hand, is a "wobbler." This means it may be charged as a misdemeanor or a felony, depending on (1) your criminal history, and (2) the circumstances of your case.

A number of related charges are worth mentioning here:

Stealing a car of any value can be charged as grand theft auto, and a gun of any value as grand theft firearm. If the person enters a structure intending to commit a theft of any kind inside, he could also be charged with Penal Code 459 Burglary. Breaking into a locked vehicle in order to steal it constitutes auto burglary. If the person buys or receives items he knows to be stolen, he can be charged with Penal Code 496 Receiving Stolen Property. If he uses force or threats to steal property from someone's immediate possessions, this constitutes Penal Code 211 Robbery.

2. How Does the Prosecutor Prove that I Committed a California Petty Theft?

In order to convict you of California petty theft per Penal Code 488, the prosecutor must only prove two facts (otherwise known as "elements"):

1. that you committed the crime of theft, and



2. that the property was valued at $950 or less.


∗On that note, the property stolen must have some intrinsic value, however slight.¹

Committing the crime of theft

If you

• permanently deprive another of money or personal property, or



• temporarily deprive another of property for a period of time that will deny the owner of a major portion of its value or enjoyment², or



• defraud another out of land or services, and



• you feloniously intended to do so,

you may be guilty of theft.

∗"Feloniously" means "with the intent to commit a crime." Despite how it sounds, it has nothing to do with a felony vs. a misdemeanor. It simply refers to a malicious act as opposed to an accident. It doesn't matter how you obtained the money, property, or labor, only that you feloniously intended to do so.

Let me give you some examples to illustrate how committing the crime of theft occurs.

• You may have shoplifted from a store, intending to leave without first paying for the merchandise that you took.



• You may have fraudulently convinced another to give you money by claiming that you were going to invest it or use it to buy something of greater value for that person (knowing that you intended to keep it for yourself).



• You may have hired someone to perform a job for you knowing that you had no intent of paying him/her once the job was completed.

All that said, there are three situations where California courts have held that an intent to steal was present despite the fact that there was no permanent (or even substantial) deprivation.³ These situations include:

1. Taking an item, intending to sell it back to the owner,



2. Taking an item, intending to return it for a refund, and



3. Taking an item to try to claim a reward for "finding it".

The bottom line is that the intent to steal is always controlling in a California petty theft or shoplifting prosecution under Penal Code 488. If that intent is present, the courts will find a way to hold you accountable. Without that intent, there is no theft.

On that note, inherent in the concept of shoplifting or theft is the concept of "taking" or "moving" the property. Even if you don't completely remove the alleged stolen item from its owner or carry it a significant distance, this requirement may be satisfied.

Once the intent to shoplift or steal has been formed, the slightest movement will suffice.⁴ That movement doesn't even need to be off the owner's premises, as long as the item is removed from the place where it was kept by the owner.⁵

As a result, if the prosecutor can prove that you ultimately intended to commit a petty theft (using circumstantial evidence of how it was concealed, for example), you could be convicted of shoplifting a $15 CD even though you didn't actually leave the store).

That the property was valued at $950 or less

Sometimes this is obvious. For example, if you were arrested for shoplifting a jacket with a $300 price tag, you would be charged with Penal code 488 petty theft.

Sometimes this isn't so obvious. For example, you stole jewelry from someone's house to give to your girlfriend. How much was it worth?

There are two ways to determine worth -- worth of personal property and worth of services or labor.

For personal property, the "reasonable fair market value" controls. This is the highest price that a typical buyer would pay a typical seller for the item at that time and in that general location.

For services, the contract price is key. If there was no contracted price, the reasonable and going rate will be used.

3. Unusual Petty Theft Situations Under Penal Code 484 & Penal Code 488

The California Penal Code specifies a few unique situations as they pertain to California petty theft. Although these certainly aren't as common as shoplifting, I think they're worth mentioning.

Leased or rented property / common household items

If you lease or rent

1. the personal property of another (pursuant to a written contract) for $1,000 or less, or



2. the property is a commonly used household item worth $1,000 or less (a used lawnmower or chainsaw, for example), then



3. it will be presumed that you committed California petty theft if you fail to return the property after the expiration of the lease/rental and within 20 days of the owner's request that you do so.

With respect to this condition, if you fraudulently present false identification to obtain the lease/rental, the presumption will automatically apply at the end of the lease/rental. Under these circumstances, there is no grace period and no requirement that the owner ask for the property back.

Land

California petty theft laws typically only pertain to possessions that are worth $950 or less. However, converting another's real estate into your own personal property with the intent to steal that property is only considered petty theft if the value is less than $250. Taking water, oil, or fruit from another's land are examples of this offense.

Violating this law increases your possible county jail sentence from a maximum of six months to a maximum of one year.

Certain foods

Similarly, unlawfully taking chickens, avocados, olives, nuts, fruits, vegetables, or other farm crops will subject you to a petty theft prosecution if their value is $250 or less. Taking any of these items whose worth exceeds that amount may result in a grand theft charge.

4. What are the Defenses to Shoplifting Under California Penal Code 484 & 488 PC?

The bad news is that a California shoplifting or other petty theft conviction will look pretty bad on your criminal record. Theft is considered a "crime of moral turpitude." Prospective employers will be hesitant to employ you if they don't think they can trust you.

The good news is that shoplifting and other California petty theft charges are definitely defensible. Depending on the situation, there are a wide variety of defenses to these charges that a California shoplifting defense lawyer could present on your behalf. Some of the most common include:

Being absent-minded (forgetting to either put back the merchandise or pay)

If you didn't have the intent to steal, you can't be convicted of this crime -- period! This means that if your California petty theft attorney can convince the prosecutor, judge, and/or jury that you simply "forgot to pay", you must be acquitted.

You may have just been distracted -- maybe your kids were acting up, maybe you were engaged in a conversation on your cell phone, maybe you realized that you left something important in the car, or maybe you were thinking about some bad news that you had just received.

As Darrell York, one of the top Los Angeles criminal defense lawyers puts it, "I've seen so many people get falsely accused of shoplifting. In today's world where people are so easily distracted, it's perfectly understandable that someone could leave a store.for any number of reasons.while still inadvertently holding merchandise. It's my job to make sure that the jury not only understands that, but believes it as well."

The allegedly stolen item belongs to you (otherwise known as a claim of right)

This defense applies when you had a good faith belief (even if you were mistaken) that the item(s) belonged to you.⁶ This defense negates the fact that you intended to steal. For example, if you took money from someone who owed you that money, you didn't have the intent to steal it.

It should be noted that this defense does not apply to situations involving notoriously illegal activity⁷ (for example, you can't take back illegal drugs from another under a "claim of right" theory).

You had consent to take the item(s)

If someone consented to you taking his/her property, there is no petty theft. Someone who consents to giving you money or other property can't simply change his/her mind after the fact. If you were given consent to take the item(s), that will serve as a defense to a petty theft charge.

That said, your use of the property must be within the scope of the consent. For example, the owner of a clothing store "consents" to you trying on clothes. He/she doesn't consent to you leaving without paying for them.

You were framed

Many people get wrongly arrested for California shoplifting and other petty theft offenses. You would be an innocent victim if someone else used you to divert attention away from him/herself. For example, Bill wanted to shoplift a jacket, so he subtly placed a scarf in your bag. Once security apprehended you, he left the store unnoticed.

5. Penalties, Punishment, and Sentencing for California Petty Theft

The penalties for committing a petty theft under California Penal Code 484 & Penal Code 488 typically include a maximum of three years of informal probation, up to six months in a county jail, and/or a maximum $1,000 fine.

But, if this is your first California petty theft charge (and you have no other theft or "theft-related" convictions), and the value of the money, property, services, etc. that you allegedly stole was $50 or less, your California petty theft attorney may be able to convince the prosecutor to reduce your charge to an infraction. If your case is reduced, you face a maximum $250 fine.⁸

If it is your first theft or "theft-related" offense, but the item(s) exceeded $50, you may be able to participate in a diversion program. Informal diversion is a type of "deal" that your California shoplifting defense attorney may be able to make with the prosecution.

In exchange for a dismissed charge, you may be required to do any or all of the following:

• Repay the value of the merchandise which you allegedly stole;



• Complete an agreed to number of community service hours; and/or



• Attend anti-theft classes.

Petty Theft With a Prior Under Penal Code 666

Just as there is an upside to being charged with a first-offense shoplifting offense, there is a downside to being convicted of petty theft if you have suffered a prior theft-related conviction for which you were incarcerated.

If that is the case, under California Penal Code 666 "Petty Theft with a Prior", you may face:

• A maximum one-year county jail sentence (if the charge was filed as a misdemeanor), or



• 16 months, or two or three years in the California State Prison (if the offense was filed as a felony).

It should also be noted that petty theft poses additional problems for aliens and immigrants. Petty theft is considered a crime of "moral turpitude" for purposes of the U.S.'s policy on deportation.⁹

In addition, an alien or immigrant who suffers a petty theft conviction with a prior may face an "aggravated felony" for purposes of sentencing enhancements.¹⁰

Although California shoplifting and other petty theft convictions can subject you to severe consequences, they can be completely defensible charges.

If you have additional questions or would like to confidentially discuss your case, we invite you to contact us. We have local criminal law offices in San Bernardino, Riverside, Van Nuys, Palm Springs, and in all nearby Southern California cities.

To learn about Nevada theft laws, go to our page on Nevada theft laws.

Legal References:

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¹People v. Quiel, (1945) 68 Cal.App.2d 674 ("It was only necessary to show that the things which were taken possessed some intrinsic value.")

²People v. MacArthur, (App. 4 Dist. 2006) 142 Cal.App.4th 275 ("An intent to temporarily deprive the owner of possession may suffice when the defendant intends to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment.")

³People v. Davis, (1998) 19 Cal.4th 301 ("Our research discloses three relevant categories of cases holding that the requisite intent to steal may be found even though the defendant's primary purpose in taking the property is not to deprive the owner permanently of possession: i.e., (1) when the defendant intends to "sell" the property back to its owner, (2) when the defendant intends to claim a reward for "finding" the property, and (3) when, as here, the defendant intends to return the property to its owner for a 'refund.'")

⁴Davis, above. ("The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession. ( Id. at pp. 326-327.) And if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation. (Id. at pp. 323-325.)" -- Quoting CALJIC No. 14.02; Perkins & Boyce, Criminal Law (3d ed. 1982))

⁵People v. Khoury, (1980) 108 Cal.App.3d Supp. 1 ("(I)n order to constitute a carrying away, the property need not be . . . actually removed from the premises of the owner. Any removal of the property from the place where it was kept or placed by the owner, done with the specific intent to deprive the owner permanently of his property . . ., whereby the perpetrator obtains possession and control of the property for any period of time, is sufficient to constitute the element of carrying away." -- Quoting (CALJIC No. 14.03; 1 Witkin, Cal. Crimes, Crimes Against Property, ss 383, 384, 385, 386))

⁶People v. Tufunga, (1999) 21 Cal.4th 935 ("The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense.")

⁷People v. Hendricks, (1988) 44 Cal.3d 635 ("The claim-of-right defense is inapplicable to claims based on notoriously illegal activities.")

⁸California Penal Code 490.1 -- Petty theft where value taken under $50 - Penalty

⁹Forero-Arias v. Mukasey, C.A.92008, 283 Fed.Appx. 518 ("Alien's California conviction for petty theft constituted a crime involving moral turpitude within meaning of removal statute.")

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