California Penal Code § 487(d)(2) PC defines the felony crime of grand theft of a firearm (GTF) as stealing a gun when either the gun is valued at more than $950 or you have a prior conviction of a serious crime.
Otherwise, stealing a gun is charged as petty theft (PC 484), which is a misdemeanor. Prior to the passage of the voter initiative Proposition 47 in November of 2014, any theft of a firearm was considered “grand theft” in California.
Examples
Here are some examples of defendants who could be charged with California grand theft firearm:
- A man breaks into a gun store and steals firearms with a total value of several thousand dollars;
- A woman tricks her neighbor into “lending” her his valuable antique gun to display at an antique show and then never returns it; and
- A man who is required to register as a sex offender (because he was once convicted of oral copulation with a minor) breaks into a home and steals an old pistol worth no more than a few hundred dollars.
In this article, our California theft crimes defense attorneys explain the following:
Stealing more than $950 worth of guns is always prosecuted as grand theft of a firearm.
1. Is GTF a felony?
One of the following two things need to be true for stealing a gun to be grand theft firearm – a felony – under California Penal Code 487(d)(2) PC.
- The firearm or firearms that are alleged to have been stolen have a total value of more than $950; OR
- You have a prior conviction for either of the following crimes:
-
- A “sexually violent offense” which means sex crimes committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury, or threats to retaliate;
- Oral copulation with a minor under 14 who is more than 10 years younger than you;
- Sodomy with a minor under 14 who is more than 10 years younger than you;
- Statutory rape of a minor under 14 who is more than 10 years younger than you;
- Lewd acts with a child under 14;
- Murder or attempted murder;
- Gross vehicular manslaughter while intoxicated;
- Assault with a machine gun on a peace officer or firefighter;
- Possession of a weapon of mass destruction;
- Any serious and/or violent felony punishable in California by life imprisonment or death; and
- Any sex crime (other than those listed above) that requires you to register as a sex offender under California’s Sex Offender Registration Act.1
You face GTF charges no matter whether you allegedly steal the gun by:
- larceny (physically taking),
- false pretenses or “trick” (fraud), or
- embezzlement.2
Grand theft of a firearm is a felony in California.
2. Penalties
Grand theft firearm is a California felony. The potential penalties are:
- Felony (formal) probation;
- 16 months, 2 years, or 3 years in California state prison; and/or
- A fine of up to $10,000.3
Grand theft firearm is also considered a “serious felony” under California’s “Three Strikes” law.
So if you have a grand theft firearm conviction on your record and are subsequently charged with any California felony, you will face twice the normal sentence for that second offense.21 Meanwhile, a third strike conviction would carry a sentence of 25 years to life in state prison.4
No intent to steal is a possible defense to PC 487(d)(2) charges.
3. Defenses
As a felony and a “strike” offense, PC 487(d)(2) grand theft firearm is a terrible conviction to have on your record.
However, in our experience, the following four defenses have proven very effective with California prosecutors, judges, and juries at getting these charges dismissed.
- You did not intent to steal. For example, perhaps you were checking out a gun at a sporting goods store or gun show and accidentally walked off with it. Or perhaps you were delivering guns for an employer and accidentally drove home with guns worth more than $950 in your car. Either way, you had no intent and are not guilty of GTF.
- The firearm belonged to you, and you believed it did. This “claim of right” defense applies not only when the firearm actually belonged to you. It also applies when you had a good faith belief it belonged to you, even if you were wrong.5
- The value of the firearm was $950 or less. Maybe the stolen item is an antique whose value is uncertain. Or maybe the prosecutors are arguing that the value of a used firearm is the price it would fetch when new. Sometimes prosecutors and/or police behave unethically and “round up” the value of an allegedly stolen item so that they can get a grand theft conviction.
- You were falsely accused. It is not uncommon for people to be falsely accused of grand theft firearm—and many other theft crimes. Often the accuser is a friend, family member, ex-lover, business colleague, etc., who is motivated by resentment or revenge. In these situations, we strategically interview witnesses and gather physical evidence in order to ensure that the truth comes out.
4. Related Offenses
- Burglary – California Penal Code 459 PC
- Felony with a Firearm – California Penal Code 29800 PC
- Petty theft – California Penal Code 488 PC
Additional Reading
For more in-depth information, refer to these scholarly articles:
- BATF Gun Trace Data and the Role of Organized Gun Trafficking in Supplying Guns to Criminals – St. Louis University Public Law Review.
- Gun Theft and Crime – Journal of Urban Health.
- Regulating Gun Markets – Journal of Criminal Law & Criminology.
- Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws – Reducing Gun Violence in America: Informing Policy with Evidence and Analysis.
- Sources of guns to dangerous people: What we learn by asking them – Preventive Medicine.
Legal References:
- Penal Code 487 PC. Penal Code 489 PC
- Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 1800 – Theft [including grand theft firearm] by Larceny (Pen. Code, § 484).
The defendant is charged [in Count ] with [grand/petty] theft [by larceny] [in violation of Penal Code section 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. [An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property.] [For petty theft, the property taken can be of any value, no matter how slight.]Judicial Council of California Criminal Jury Instruction CALCRIM 1804 – 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.Under California law, you make a false pretense if you: 1) Intend to deceive someone else; AND 2) Do one of the following things: Say something that you know is false; Recklessly claim something is true when you have no reason to believe it is; Fail to provide information that you have an obligation to provide; OR Make a promise that you don’t intend to fulfill. Judicial Council of California Criminal Jury Instruction CALCRIM 1805 – 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.Judicial Council of California Criminal Jury Instruction CALCRIM 1806 – 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). 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. - Penal Code 489 PC.
- Penal Code 1192.7 PC. Penal Code 667(e)(1) PC.
- People v. Tufunga (1999) 21 Cal.4th 935. (“The claim-of-right defense [to grand theft firearm charges] 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.”)