The crime of theft in California law is defined as the unlawful taking of someone else's property.1
And when the property that is taken is valued at nine hundred fifty dollars ($950) or less, then the theft is considered the California crime of petty theft under Penal Code 484 & 488 PC.2
The majority of petty theft cases arise when someone simply physically takes property that belongs to someone else. This is known as "theft by larceny."4
However, there are other, more complicated forms of theft that sometimes give rise to petty theft charges include:
- theft by trick (for example, changing the price tag on an item in a store so that you can pay less for it),
- theft by embezzlement in California law – that is, taking something that has been entrusted to you (usually money), and
- theft by fraud or false pretense (telling a lie in order to persuade someone else to give you their property).3
Also, the separate offense of shoplifting--which is defined in Penal Code 459.5 PC--consists of entering a commercial establishment while it is open, with the intent to steal items worth nine hundred fifty ($950) or less.4
Here are some examples of activity that can lead to petty theft/shoplifting charges in California:
- Shoplifting DVDs worth a couple hundred dollars;
- “Borrowing” a $500 lawn mower from a neighbor when you have no intention of returning it; and
- Taking a $300 smartphone from a shipment of phones you are delivering for your boss.
Both petty theft and shoplifting are misdemeanors in California law.
The maximum penalties for most first-time petty theft convictions are a fine of up to one thousand dollars ($1,000), up to six (6) months in county jail, or both.5
There are certain legal defenses that can be very helpful in fighting a California petty theft or shoplifting charge. A good California criminal defense attorney knows how to help you use these defenses to get your charges reduced or dismissed.
Potential legal defenses for petty theft or shoplifting include:
- You did not intend to steal or shoplift the item,
- The item actually belonged to you,
- The person who owned the item consented to you taking it, and/or
- You were falsely accused.
In order to help you understand the California theft crime of petty theft under Penal Code 484 & 488 PC, our California criminal defense attorneys will address the following:
If after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
The legal definition of petty theft in California revolves around certain key facts that the prosecutor is supposed to prove before they can get a conviction. These facts are known as “elements of the crime.”
The elements of petty theft (Penal Code 484 PC) depend on the type of theft that is supposed to have taken place.
Most petty theft cases involved the form of theft known as “larceny”…which usually occurs when someone physically carries off another person's property.
The legal definition of theft by larceny is as follows:
1. You took possession of property owned by someone else;
2. You took the property without the owner's permission;
3. When you took the property, you intended either
a. to deprive the owner of it permanently, or
b. to deprive the owner of it for a period of time long enough that the owner would miss a major portion of the value or enjoyment of property; AND
4. You moved the property…even a small distance…and kept it for a period of time…even a brief one.6
Example: Scott is a 16-year-old boy. While visiting a friend's house, he comes across several "adult" videos that belong to the friend's father.
Scott would like to borrow these videos but would not dream of asking to do so. So he sneaks the videos out of the friend's house in his backpack.
Scott does not intend to keep the videos forever. In fact, several months later, he tries to quietly return them to his friend's house…but the friend's father catches him and calls the police.
Scott may still be guilty of petty theft by larceny, even though he intended to return the videos. That is because he deprived the owner of them for several months.
Example: Terry is a college student who is angry at her friend Melissa because of a dispute over a boy they are both interested in. In order to “get even” with Melissa, Terry takes Melissa's cell phone without her permission and hides it for 24 hours before returning it.
Terry did NOT commit the crime of petty theft. This is because she did not intend to deprive Melissa of the cell phone for a long enough period to really affect her ownership or enjoyment of it.7
Another, probably less common form of petty theft is known as “theft by false pretense” (Penal Code 532) or theft by fraud.
Under Penal Code 532, the legal definition of theft by false pretense is:
- You knowingly and intentionally deceived a property owner by “making a false pretense”…basically, telling him/her something that wasn't true;
- You did so intending to persuade them to let you take possession of their property; AND
- That person let you take possession and ownership of their property because they were relying on your false pretense.8
Because this form of petty theft is more complicated than petty theft by larceny, we will provide more detail on some of the concepts in the legal definition of petty theft by false pretenses.
Making a false pretense
California law says that you make a false pretense if you intend to deceive someone else AND do one of the following things:
- Give information that you know is false,
- Recklessly say something is true without any basis for believing that it's true,
- Fail to give information when you have an obligation to do so, OR
- Make a promise that you don't intend to fulfill.9
Example: Cathy's bicycle chain breaks, and she cannot afford to have it fixed. But her neighbor Rick tells her that he has a friend who operates a sort of “junkyard” for bicycles and would love to have Cathy's bicycle to use for parts. Rick promises Cathy that, if she gives him her bicycle, he will trade it to his friend for another, working bicycle . . . which he will then give to Cathy.
So Cathy lets Rick have her bicycle. But Rick never returns it…in fact, he sells it for parts himself and pockets the cash.
Rick is probably guilty of petty theft by false pretenses. The false pretense in this case was making a promise—to take Cathy's bicycle to his friend and trade it for a working one—that he never intended to fulfill.
Relying on your false pretense
You are only guilty of petty theft if the other person gave up their property to you relying on your false pretense. If they gave you their property for some other reason, then you are not liable for this crime.10
This just means that the false pretense has to be an important reason why the person gave up their property. It does not have to be the only reason.11
Example: Let's return to Cathy and Rick from the previous example. Let's say that Cathy has been romantically interested in Rick for a long time. So she lets him have her bicycle for two reasons: because she wants a new bicycle, and because she is looking forward to having a reason to see him again (when he brings her the new bicycle).
Rick may still be guilty of petty theft by false pretense . . . even though Cathy's reliance on his false promise is only one of two reasons why she gave him her bicycle.
Special evidence requirements for petty theft by false pretenses
A jury is not supposed to convict you of petty theft by false pretenses unless the prosecutor can produce one of the following showing that you actually made a false pretense:
- A false writing or “false token” (i.e., some kind of fake document…like an ID card),
- A note or memorandum of the false pretense signed or handwritten by you,
- Testimony from at least two witnesses, OR
- Testimony from one witness plus some other evidence.12
These requirements exist because otherwise it would be too easy for one person to falsely accuse another of petty theft by false pretenses… often in the context of a business deal that went sour. The accuser could claim that the accused person told them something that wasn't true, when really the accused person said no such thing.
Example: Let's go back to Cathy and Rick once again. This time, let's say Cathy's bike breaks and she decides she doesn't want to deal with the trouble and expense of fixing it. So she tells Rick, who knows how to repair bikes, that he can have her bike for free.
Later, Cathy has second thoughts and decides she wants her bike back. Rick won't give it back…so she makes up the story above about him stealing it by false pretenses.
If the prosecutor's only evidence is Cathy's testimony that Rick falsely promised to have her bicycle fixed and return it to her, then Rick should not be guilty of petty theft by false pretenses. The prosecution would have to find some other evidence…besides Cathy's testimony…that Rick made the false promise.
Another form of petty theft under Penal Code 484 is so-called “theft by trick.”
The legal definition of petty theft by trick is:
1. You obtained property that you knew was owned by someone else;
2. The property owner let you take possession of the property because you had used some kind of fraud or deceit;
3. When you obtained the property, you intended either
a. to deprive the owner of it permanently, or
b. to deprive the owner of it for a period of time long enough that the owner would miss a major portion of the value or enjoyment of property;
4. You kept the property for any length of time; AND
5. The property owner didn't intend to transfer ownership of the property to you.13
Petty theft by trick may sound a lot like petty theft by false pretense. But the difference is this:
- With petty theft by false pretense, the other person lets the “thief” have both possession and formal title/ownership of the property; BUT
- With petty theft by trick, the owner never intends to transfer ownership to the “thief”…only possession.14
Example: Rick, Cathy, and Cathy's bicycle can again be a helpful example.
Let's say Cathy's bicycle breaks…and instead of telling her he can trade it to his friend for a new one, Rick tells her that his friend will fix the bicycle for free. So Cathy gives Rick her bike to take to his friend, fully expecting that he will give it back.
This is theft by trick…not theft by false pretenses. The reason is that Cathy never intended to transfer ownership of her bike to Rick…she merely intended to give him possession of it long enough for him to get it fixed.
The so-called “white-collar crime” of embezzlement in California law can be another form of petty theft.15
The legal definition of petty theft by embezzlement involves the following elements:
- An owner of property entrusted the property to you;
- The property owner did so because s/he trusted you;
- You fraudulently took or used that property for your own benefit; and
- When you took or used the property, you intended to deprive the owner of the use of it (even temporarily).16
You are considered to have taken or used someone else's property “fraudulently” if you took undue advantage of them, or caused them a loss by breaching a duty or confidence.17
Interestingly, it is not a defense to petty theft by embezzlement charges that you intended eventually to return the property.18
Example: Maria is the accountant for a small business. In this capacity, she has control over all of the business's bank accounts.
Maria is falling behind on her car payments. She takes $600 out of the business's reserve account and uses it to make a couple months' car payments. She fully intends to restore the money when her personal finances recover.
Still, Maria may be guilty of petty theft by embezzlement. She was in a position of trust with respect to the small business, she took its money for her own use…and she did intend to deprive the business of the ability to use those funds, even though this was only for a short period of time.
Penal Code 459.5 PC sets out the separate offense of "shoplifting." Shoplifting became a separate offense--as opposed to a subset of petty theft--in November 2014 as part of Proposition 47.19
The legal definition of shoplifting is:
- Entering a commercial establishment (usually a store),
- While that establishment is open during regular business hours,
- With the intent to commit larceny of objects with a value of $950 or less--that is, petty theft.20
You may be charged with shoplifting even if you don't actually succeed in stealing the items. All that matters is that you have the intent to steal them.21
However, if you do succeed in shoplifting items worth $950 or less, you will be charged only with shoplifting--not with both PC 459.5 PC shoplifting and PC 488 petty theft.22
Example: Kenneth walks into a large department store and removes a men's shirt worth $300 from the shelf.
He carries the shirt to another department and asks if he can return it for a refund--he claims that it was a gift to him and doesn't fit.
Kenneth did take the shirt without the owner's permission, he did move it a short distance, and he did intend to deprive the department store of the value of the shirt by getting a cash “refund” for it. Thus, his intent was to commit larceny inside the department store.23
That means he is guilty of the crime of PC 459.5 shoplifting.
The legal definition of California petty theft that we just explained is almost exactly same as the legal definition of California grand theft under Penal Code 487 PC.24 The major difference lies in the type and value of the property that is supposed to have been stolen.
Simply put, in most cases, California theft is petty theft…and not grand theft…when the property that is supposed to have been stolen is worth nine hundred fifty dollars ($950) or less.25
Changes made by Proposition 47
California's petty theft law underwent major changes as a result of the voter initiative Proposition 47, which was passed in November 2014.26
Prior to the passage of Prop 47, a theft was always considered grand theft if the property stolen was either:
- Taken "from the person" of someone else (through, for example, pickpocketing);
- A car; or
- A firearm.27
Before Prop 47, these forms of theft were grand theft even if the value of the property stolen was $950 or below.28
And even now, after the passage of Prop 47, those forms of theft will be treated as grand theft if you have one of the following prior convictions on your record:
- A conviction for a sex crime that requires registration under California's Sex Offender Registration Act; or
- An especially serious felony listed in Penal Code 667(e)(2)(C)--such as murder, attempted murder, gross vehicular manslaughter while intoxicated, forcible sex crimes, and sex crimes against children under 14.29
Determining the value of property
In order to determine whether a given instance of theft was grand theft or petty theft, courts and prosecutors must determine the value of property. To do this, they use something called “fair market value."30
Fair market value is defined as the highest price the property would reasonably have sold for in the open market at the time…and in the place…where it was stolen.31
Sometimes the fair market value of stolen property is obvious. For example, if you were arrested for shoplifting a jacket with a $300 price tag, you would almost certainly be charged with Penal Code 459.5 PC shoplifting (which, like petty theft, applies only to theft of items worth $950 or less).
But sometimes it's not so obvious. For example, let's say you stole jewelry from someone's house. The jewelry was antique and was last purchased over a century ago. In situations like this, the fair market value of the property can become a big issue in the defendant's criminal case.
Both Penal Code 484 petty theft and PC 459.5 shoplifting are misdemeanors in California law. If convicted of either offense, you may face any or all of the following penalties:
- Informal (also known as summary) probation,
- Up to six (6) months in county jail, and/or
- A fine of up to one thousand dollars ($1,000).32
- this is your first California petty theft conviction…and you have no other theft crime or "theft-related" convictions… AND
- the value of the money, property, services, etc. that you allegedly stole was fifty dollars ($50) or less,
then your California petty theft attorney may be able to convince the prosecutor to reduce your charge to a less-serious infraction. If your case is reduced, you face a maximum $250 fine.33
If it is your first theft or "theft-related" offense, but the item(s) exceeded $50 in value…you still may be able to participate in a petty theft diversion program. Informal diversion is a type of "deal" that your California shoplifting defense attorney may be able to make with the prosecution.
The way petty theft diversion works is this: the petty theft charges against you will be dismissed. In exchange, you will be required to do some or all of the following:
- Repay the value of the merchandise which you allegedly stole;
- Complete an agreed-upon number of community service hours; and/or
- Attend anti-theft classes.
Under California Penal Code 666 PC “Petty Theft with a Prior”, if you have been convicted and served time for certain theft crimes, you may face increased penalties for a petty theft conviction.
The prior convictions that lead to increased penalties are:
- Petty theft,
- Grand theft,
- Grand theft auto,
- Robbery, and
- Felony receiving stolen property.34
Luckily, it's not enough to simply have one of these theft crime convictions on your record. To be sentenced under California's “petty theft with a prior” law, one of the following things also needs to be true:
1. Your prior theft conviction is for stealing from, embezzling from, or defrauding an elderly person under California's elder abuse law; OR
2. You have one (1) conviction for a crime from the list above, AND either:
a. You have a prior sex crime conviction that subjects you to the requirement to register as a sex offender under Penal Code 290, OR
b. You have a previous conviction for a serious felony listed in Penal Code 667(e)(2)(C)--such as murder, attempted murder, gross vehicular manslaughter while intoxicated, forcible sex crimes, and sex crimes against children under 14.35
If you meet these requirements, then petty theft becomes a wobbler in California law. This means that the prosecutor may choose to charge it as either a misdemeanor OR as a felony…depending on the circumstances of the case and your criminal history.36
If petty theft with a prior is charged as a misdemeanor, the maximum county jail term increases from six (6) months (for regular petty theft) to one (1) year (for petty theft with a prior).37
And if petty theft with a prior is filed as a felony, then you may face a sentence of sixteen (16) months, two (2) years or three (3) years in California state prison.38
Although California shoplifting and petty theft convictions can subject you to surprisingly severe consequences, the good news is that there are legal defenses available to help you beat petty theft charges.
An experienced criminal defense attorney can help you assert one or more of the following legal defenses to help get your charges reduced or dismissed.
You did not actually intend to steal the item
If you didn't have the intent to steal, you can't be convicted of petty theft or shoplifting – period!39
This means that if your California petty theft attorney can convince the prosecutor, judge, and/or jury that you were simply being absent-minded…that you forgot to pay or something similar…then you are not guilty of petty theft or shoplifting.
This defense applies most often in shoplifting cases.
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.
According to San Bernardino criminal defense attorney Michael Scafiddi40:
"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 holding merchandise they didn't intend to steal. It's my job to make sure that the jury not only understands that, but believes it as well."
You believed the “stolen” item actually belonged to you
This defense applies either
- when the “stolen” property actually belonged to you, or
- when you had a good faith belief…even if you were mistaken…that it belonged to you.41
This is because intent to steal is an element of the crime of theft. If you believed an item belonged to you, then you couldn't have intended to steal it.
Example: Kirsten and her sister Stephanie are estranged and haven't spoken in years. Their mother is very ill with cancer. Before she dies, the mother tells Kirsten that she intends to leave her engagement ring to Kirsten.
Kirsten mistakenly believes that the engagement ring is at her sister Stephanie's house. After her mother dies, she goes to Stephanie's house when Stephanie is not home, has Stephanie's daughter let her in to the house, and goes to Stephanie's bedroom, where she takes what she believes is their mother's engagement ring…but is in fact a different ring owned by Stephanie.
Because Kirsten honestly and in good faith believed that she was entitled to take the ring she took…she is probably not guilty of petty theft.
The person who owned the item consented to you taking it
If someone consented to you taking his/her property, there is no petty theft.42
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, your boss may consent to you taking his/her car on a work errand…but that doesn't mean s/he consented to you taking the car overnight and using it to go out on your own personal excursions.
Also, if the consent was obtained by false pretenses or trick…as we discuss in Section 1.2 and Section 1.3 above…then it will not be a valid legal defense to a petty theft charge.
You were falsely accused
Countless people are falsely accused—framed—and wrongly arrested for California shoplifting and other petty theft offenses. Therefore, this is a common and helpful potential legal defense.
Example: Bill wants to shoplift a jacket from a store. So he picks up a scarf and quietly places it in the purse of Mary, a stranger who is shopping nearby.
When Mary tries to leave, she is apprehended by security. Bill sneaks out of the store with his jacket while security is busy dealing with Mary. If charged with shoplifting, Mary will certainly be able to use the false accusations defense.
There are certain related California theft crimes that may be charged instead of…or along with…Penal Code 484 & 488 PC petty theft or Penal Code 459.5 shoplifting. Some of these are:
We discussed the legal definition of Penal Code 484 & 487 PC grand theft in Section 2 above. The elements of grand theft are basically the same as those for California petty theft…it's just that grand theft occurs when the property stolen is worth more than $950.43
Also, as discussed in Section 2 of this article, for defendants with certain serious prior convictions, a theft will be grand theft regardless of the value of the property, if the property is
- taken from the person (off of the body) of the property's owner,
- an automobile (of any value), or
- a firearm (of any value).44
So, depending on the kind and value of the stolen property—an issue that might be debatable—the prosecutor will charge you with either grand theft under Penal Code 487 PC or petty theft under Penal Code 488 PC.
Grand theft is usually a wobbler, so it may be charged as either a misdemeanor or a felony. The misdemeanor penalties include up to one (1) year in county jail. The felony penalties may include:
- sixteen (16) months, two (2) years or three (3) years in county jail, or
- if it involves theft of a firearm, sixteen months, or two or three years in California state prison.45
You may also have heard of grand theft auto…which is a category of grand theft in which the property stolen includes an automobile. Grand theft auto is almost always charged as a felony.
Also, grand theft firearm is grand theft in which the stolen property includes a firearm. Grand theft firearm is always a felony and carries a California state prison sentence of sixteen (16) months to three (3) years.46
A Penal Code 459 PC California burglary occurs when someone enters a building or other enclosure with the intent to commit a felony or a grand theft once inside.47 The crime of California auto burglary is more or less the same thing…except that it involves entering a car intending to commit a felony or theft, instead of a building.48
If you enter a house, yard, or car and then steal something of relatively little value, you could face charges for both Penal Code 459 PC burglary (or auto burglary) and petty theft.
Burglary is a felony, carrying a county jail term of up to (3) years. But the penalty can be up to six (6) years in California state prison if it is committed in an inhabited house or trailer (that is, where someone is currently living). Auto burglary and burglary of uninhabited structures are wobblers.49
But note that if you enter an open store intending to commit petty theft once inside, you will be charged with Penal Code 459.5 shoplifting rather than with burglary.50
Another well-known California theft crime is Penal Code 211 PC robbery. A robbery occurs when someone uses force or fear to take someone else's personal property from their person or immediate presence.51
It is possible to face charges for both California robbery and Penal Code 488 PC petty theft if, for example, you use force or fear to take property worth less than $950 off of someone's person.
Robbery is always a felony. It carries a California state prison term of two (2) to six (6) years.52
Call Us for Help…
If you or loved one is charged with Penal Code 484 & 488 PC petty theft, or Penal Code 459.5 shoplifting, and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn about the crime of petty theft in Nevada, you may visit our page on the crime of petty (petit) larceny in Nevada.
You may also find helpful information in our related articles on California Embezzlement Laws Penal Code 503; California Grand Theft Under Penal Code 487 PC; How to Appeal Your Sentence Under Proposition 47; California's Sex Offender Registration Act; Legal Definition of a Misdemeanor in California Law; Explanation of California Probation & Probation Violation Hearings; California Theft Crime Defense Lawyers; Legal Definition of an Infraction in California Law; Penal Code 666 PC Petty Theft with a Prior; California's Elder Abuse Law; Legal Definition of a Wobbler in California Law; Legal Definition of a Felony in California Law; Common Legal Defenses to California Crimes; California Grand Theft Auto Law; California Penal Code 487(d)(2) PC – Grand Theft Firearm; Penal Code 459 PC California Burglary; California Auto Burglary Penal Code 459 PC; and Penal Code 211 PC Robbery.
1 Penal Code 484 PC – Theft [including petty theft] defined. (“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.”)
2 Penal Code 488 PC – Petty theft defined. (“Theft in other cases is petty theft.”)
See also Penal Code 487 PC – Grand theft defined [contrast with petty theft]. (“Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken 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 Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders. (“(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”)
3 See Penal Code 484 PC – Theft [including petty theft] defined, endnote 1, above.
4 Penal Code 459.5 PC – Shoplifting. (“(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”)
5 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.”)
See also Penal Code 459.5 PC -- Shoplifting, above.
6 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1800 – Theft by Larceny (Pen. Code, § 484). (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant took possession of property owned by someone else; 2 The defendant took the property without the owner's [or owner's agent's] consent; 3 When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's [or owner's agent'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 4 The defendant moved the property, even a small distance, and kept it for any period of time, however brief.”)
7 Based on People v. Davis, (1998) 19 Cal.4th 301, 307. (“For example, we have said it would not be larceny for a youth to take and hide another's bicycle to “get even” for being teased, if he intends to return it the following day.”)
8 CALCRIM 1804 – Theft [including petty theft] by False Pretense (Pen. Code § 484). (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant knowingly and intentionally deceived a property owner [or the owner's agent] by false or fraudulent representation or pretense; 2 The defendant 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; AND 3 The owner [or the owner's agent] let the defendant [or another person] take possession and ownership of the property because the owner [or the owner's agent] relied on the representation or pretense.”)
9 See same, Theft [including petty theft] by False Pretense (Pen. Code § 484). (“A false pretense is any act, word, symbol, or token the purpose of which is to deceive. [Someone makes a false pretense if, intending to deceive, he or she does [one or more of] the following: [1 Gives information he or she knows is false(./;)] [OR 2 Makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth(./;)] [OR 3 Does not give information when he or she has an obligation to do so(./;)] [OR 4 Makes a promise not intending to do what he or she promises.]]”)
10 See same, Theft [including petty theft] by False Pretense (Pen. Code § 484). (“To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The owner [or the owner's agent] let the defendant [or another person] take possession and ownership of the property because the owner [or the owner's agent] relied on the representation or pretense.”)
11 See same, Theft [including petty theft] by False Pretense (Pen. Code § 484). (“[An owner [or an owner's agent] relies on false pretense, if the falsehood is an important part of the reason the owner [or agent] decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner [or agent] considers in making the decision.”]
12 See same, Theft [including petty theft] by False Pretense (Pen. Code § 484). (“You may not find the defendant guilty of this crime unless the People have proved that: [A The false pretense was accompanied by either a false writing or false token(;/.)] [OR] [(A/B) There was a note or memorandum of the pretense signed or handwritten by the defendant(;/.)] [OR] [(A/B/C) Testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense.]”)
13 CALCRIM 1805 – Theft [including petty theft] by trick (Pen. Code, § 484). (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant obtained property that (he/she) knew was owned by someone else; 2 The property owner [or the owner's agent] consented to the defendant's possession of the property because the defendant used fraud or deceit; 3 When the defendant obtained the property, (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's [or owner's agent'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); 4 The defendant kept the property for any length of time; AND 5 The owner [or the owner's agent] did not intend to transfer ownership of the property.”)
14 See same, Theft [including petty theft] by trick (Pen. Code, § 484), Related Issues. (“Although fraud is used to obtain the property in both theft by trick and theft by false pretense, in theft by false pretense, the thief obtains both possession and title to the property. For theft by trick, the thief gains only possession of the property.”)
15 See Penal Code 484 PC – Theft [including petty theft] defined, endnote 1, above.
16 CALCRIM 1806 – Theft [including petty theft] by Embezzlement (Pen. Code, §§ 484, 503). (“To prove that the defendant is guilty of this crime, the People must prove that: 1 An owner [or the owner's agent] entrusted (his/her) property to the defendant; 2 The owner [or owner's agent] did so because (he/she) trusted the defendant; 3 The defendant fraudulently (converted/used) that property for (his/her) own benefit; AND 4 When the defendant (converted/used) the property, (he/she) intended to deprive the owner of (it/its use).”)
17 See same, Theft [including petty theft] by Embezzlement (Pen. Code, §§ 484, 503). (“A person acts fraudulently when he or she takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence.”)
18 See same, Theft [including petty theft] by Embezzlement (Pen. Code, §§ 484, 503). (“[An intent to deprive the owner of property, even temporarily, is enough.] [Intent to restore the property to its owner is not a defense.]”)
19 Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders, endnote 2, above.
23 People v. Davis, endnote 7, above, at 307.
24 See Penal Code 484 PC – Theft [including petty theft] defined, endnote 1, above.
25 See endnote 2, above.
26 “Prop 47 Passes, Reducing Some Crime Penalties,” Los Angeles Times, Nov. 4, 2014.
27 See endnote 2, above.
28 See same.
29 Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders, endnote 2, above.
See also Penal Code 667(e)(2)(C)(iv). (“(iv) The defendant [shall not be eligible for a Proposition 47 sentence for petty theft if s/he] suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”)
30 CALCRIM 1801 – Theft [grand theft and petty theft]: Degrees. (“[The value of (property/services) is the fair (market value of the property/market wage for the services performed).] <Fair Market Value—Generally> [Fair market value is the highest price the property would reasonably have been sold for in the open market at the time of, and in the general location of, the theft.]”)
31 See same.
32 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.”)
See also Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders, endnote 2, above.
33 Penal Code 490.1 PC – Petty theft where value taken under $50; penalties. (“(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).”)
34 Penal Code 666 PC – Petty theft with a prior. (“(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. (b) Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.”)
35 See same, Petty theft with a prior.
36 See same, Petty theft with a prior.
37 See same, Petty theft with a prior.
38 See same, Petty theft with a prior.
39 CALCRIM 1800 – [Petty] Theft by Larceny, endnote 6, above.
40 San Bernardino criminal defense attorney Michael Scafiddi is a former law enforcement officer. He now uses that inside knowledge to help defend clients accused of California theft crimes, including petty theft and shoplifting, as well as other criminal charges in San Bernardino and Riverside Counties. Scafiddi routinely makes appearances at the Murrieta Southwest Justice Center and in Fontana, Banning, Barstow, Palm Springs, and Joshua Tree.
41 People 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.")
42 CALCRIM 1800 – [Petty] Theft by Larceny, endnote 6, above.
43 Penal Code 487 PC – Grand theft defined [contrast with petty theft], endnote 2, above.
See also Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders, endnote 2, above.
45 Penal Code 489 PC – Grand theft; punishment. (“Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, two, or three years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.”)
See also California Penal Code 1170(h)(1) -- ("Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")
46 See same.
47 Penal Code 459 PC – Burglary and auto burglary [may be charged along with petty theft]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”)
48 See same, Burglary and auto burglary [may be charged along with petty theft].
49 See Penal Code 460 PC; Penal Code 461 PC.
50 Penal Code 459.5 PC -- Shoplifting, endnote 4, above.
51 Penal Code 211 PC – Robbery [may be charged along with petty theft]. (“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”)
52 See Penal Code 213 PC.