Under Penal Code 487(d)(2) “Grand theft firearm” in California is a form of 487 PC grand theft in which the property taken is a firearm.1
But since Prop 47 was passed, theft of a firearm is only considered “grand theft firearm” if one of the following is true:
- The firearm or firearms that were stolen are worth more than nine hundred fifty dollars ($950); or
- The defendant has a prior conviction for either a California sex crime that requires him/her to register under California's sex offender registration act, or one of a short list of particularly serious felonies (such as murder, rape or sexual abuse of a child under 14).2
If neither of those things is true, then a theft of a firearm will be punished as 484 PC petty theft.3
Here are some examples of defendants who could be charged with California grand theft firearm (sometimes referred to as “GTF”):
- A man breaks into a gun store and steal 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 antiques 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.
Grand theft firearm is a felony in California law.4
The potential penalties include sixteen (16) months, two (2) years or three (3) years in California state prison, and/or a fine of up to ten thousand dollars ($10,000).5
Grand theft firearm is a serious offense—and it can seem like a pretty straightforward crime. But in fact it is very possible to fight GTF charges with the help of a skilled theft crimes defense lawyer.
Some of the more common legal defenses for grand theft firearm charges include:
- You did not intend to steal;
- The firearm actually belonged to you—or you believed it did;
- The total value of the firearm(s) was $950 or less; and/or
- You were falsely accused.
In this article, our California theft crimes defense attorneys explain the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of California grand theft firearm under California Penal Code 487(d)(2) depends on how the defendant is alleged to have committed the crime of GTF.
But no matter what form of grand theft firearm the defendant is alleged to have committed, certain things need to be true in order for theft of a firearm to be grand theft firearm—as opposed to just petty theft.
Theft of a firearm is considered grand theft firearm if one of the following is true:
- The firearm or firearms that are alleged to have been stolen have a total value of more than nine hundred fifty dollars ($950); OR
- The defendant has a prior conviction for a particularly serious crime.6
Otherwise, theft of a firearm will be California petty theft.7
The prior convictions that can turn theft of a firearm worth $950 or less into grand theft firearm include:
- All “sexually violent offenses,” 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 the defendant;
- Sodomy with a minor under 14 who is more than 10 years younger than the defendant;
- Statutory rape of a minor under 14 who is more than 10 years younger than the defendant;
- 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 the defendant to register as a sex offender under California's Sex Offender Registration Act.8
According to Glendale criminal defense attorney David F. Poblete9:
“Until November of 2014, when California voters passed Proposition 47, any theft of a firearm was considered ‘grand theft firearm.' But Prop 47 was intended to introduce a little sanity to California criminal law, by reducing the potential penalties for a number of nonviolent offenses. Prop 47 provides that theft of a firearm is only grand theft if the firearm is worth more than $950 or the defendant has a particularly serious prior. But because the particularly serious prior may have occurred decades ago—and may have next to nothing to do with the current offense—you can still see pretty unfair results under the new law.”
Example: When Scott is 19, he is convicted of Penal Code 288 lewd acts with a minor for molesting a 13-year-old girl. After serving his sentence, Scott receives psychological treatment for sex addiction and turns his life around.
Years later, when he is in his 40s, Scott develops a painkiller addiction following an injury at work. He ends up stealing small items to support his drug habit.
One day Scott shoplifts an old pistol, worth only a few hundred dollars, from a gun store.
Normally theft of a gun worth that little would be considered only petty theft. But because Scott has a prior conviction for a qualifying offense, he is charged instead with grand theft firearm.
The most common form of grand theft firearm is theft by larceny of a firearm.
The legal definition of grand theft firearm by larceny is:
- You took possession of a firearm owned by someone else;
- You took the firearm without the owner's consent or the consent of his/her agent;
- When you took possession of the firearm, you intended to deprive the owner of it permanently or to remove it from his/her possession for a long enough time that s/he would be deprived of a major portion of its value or enjoyment; and
- You moved the firearm, even a small distance, and kept it for any period of time, no matter how brief.10
Example: Miguel's best friend Rick has just been dumped by his girlfriend. Rick is very depressed.
Miguel goes over to Rick's house to try to cheer him up. They drink a large amount of beer together, and Rick falls asleep.
Miguel knows that Rick has multiple guns in the house (worth a total of around $1500) and is worried that Rick might wake up and try to kill himself with one of them.
So he takes all the guns with him when he leaves. He intends to tell Rick the next day that he has them and give them back once he's sure that Rick's emotional state is okay.
Miguel took possession of Rick's guns without his consent and moved them from his house. But he did not intend to deprive Rick of them permanently or for a material amount of time. Therefore, he is not guilty of grand theft firearm.
Example : Charlene's sister Belinda loves to hunt and has a collection of shotguns in her house. Belinda also has two children.
Charlene does not like guns and does not think guns should be kept in a home where children live. So one day when she knows Belinda will not be home, Charlene drives to Belinda's house, uses the “secret” key to open the door, and takes the guns.
Charlene does not intend to give the guns back. She plans to turn them into the local police as part of a “gun buyback” program.
If the guns are worth more than $950, then Charlene has just committed grand theft firearm by larceny—because she did intend to deprive Belinda of them permanently. (She may also be guilty of Penal Code 459 PC burglary for entering Belinda's house to commit GTF.)
Another way to commit grand theft firearm is through “false pretenses.”
The legal definition of GTF by false pretenses is:
- You knowingly and intentionally deceived a gun owner or his/her agent by a false pretense;
- You did so intending to persuade the owner or agent to let you take possession and ownership of his/her firearm(s); and
- The owner let you take possession and ownership of the firearm(s) because s/he relied on your false pretense.11
Under California law, you make a false pretense if you:
- Intend to deceive someone else; AND
- Do one of the following things:
a. Say something that you know is false;
b. Recklessly claim something is true when you have no reason to believe it is;
c. Fail to provide information that you have an obligation to provide; OR
d. Make a promise that you don't intend to fulfill.12
The legal definition of grand theft firearm by trick is:
- You obtained a firearm (or multiple firearms) that someone else owned (and you knew they were owned by someone else);
- You used fraud or deceit to get the property owner to let you take possession of his/her firearms;
- You took possession of the firearms intending to either deprive the owner of them permanently, or take them away from the owner for a period of time long enough that s/he would be deprived of a significant portion of the value or enjoyment of them;
- You kept the firearms for a period of time (even a very brief period); AND
- The property owner didn't intend to transfer ownership of the firearms to you.13
Based on this legal definition, you may wonder what exactly the difference is between GTF by false pretenses and GTF by trick. The difference is that, with GTF by false pretenses, the owner of the guns lets the defendant have both possession and ownership of the firearms (this can mean, for example, formal title to them).
But with grand theft firearm by trick, the idea is that the owner lets the defendant take only possession of the guns—without any intention to let him/her take ownership of them.14
Example: Isabelle is an elderly widow who takes loving care of her late husband's antique rifles but knows very little about guns.
Luke, a neighbor of Isabelle's, tells her that she needs to have the guns “cleaned and serviced” regularly if she wants them to stay in good condition. He claims he has a friend who can do this for her for a reasonable fee.
Isabelle trusts Luke and gives him the guns, which are worth thousands of dollars, expecting him to take them to be “cleaned and serviced.” But instead Luke sells the guns and keeps the sales proceeds.
Luke is guilty of grand theft firearm by trick, because he used deceit to convince Isabelle to give him possession (but not ownership) of her guns.
The last way in which one can commit grand theft firearm is through 503 PC embezzlement. Embezzlement of a firearm occurs in the following circumstances:
- The owner of a firearm entrusts it to you;
- S/he does so because s/he trusts you;
- You fraudulently convert or use the firearm for your own benefit; and
- When you convert/use the firearm, you intend to deprive the owner of its use.15
You act “fraudulently” when you take undue advantage of someone, or you cause a loss to someone by breaching a duty, trust or confidence.16
You can commit GTF by embezzlement (and other forms of embezzlement, for that matter) even if you plan to restore the firearm to its owner.17
Example: Elsa works in a gun store owned by Carl. Elsa's teenage son Nathan has been the target of a particularly vicious bully at his school.
One night Elsa sneaks a top-of-the-line semiautomatic pistol (worth over a thousand dollars) out of the store. She lends it to Nathan and tells him to use it to threaten the bully. Her plan is to return it after a week or so.
Elsa is guilty of grand theft firearm by embezzlement—because she took advantage of Carl's trust in her to use his gun for her own benefit. It does not matter that she meant to return the gun eventually. (She may also face charges of contributing to the delinquency of a minor for encouraging Nathan to threaten the bully with a gun.)
Grand theft firearm is a California felony18
The potential penalties are:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).19
Grand theft firearm is also considered a “serious felony” under California's “Three Strikes” law.20
So if you have a grand theft firearm conviction on your record and you are subsequently charged with any California felony, you will face twice the normal sentence for that second offense under California's “Three Strikes” law.21
And, if you accumulate three “strike” convictions—one or more of which may be a Penal Code 487(d)(2) conviction—then you will receive a sentence of twenty-five (25) years to life in state prison.22
As a felony and a “strike” offense, PC 247(d)(2) grand theft firearm is a terrible conviction to have on your record.
But if you are charged with GTF, don't despair. There are several powerful legal defenses that, depending on the circumstances of the allegations, may be able to help you beat these charges or get them reduced.
You did not intend to steal
If you didn't have the intent to steal, you are not guilty of grand theft firearm—or any theft, for that matter!23
It is not common for people to accidentally take someone else's firearm—but it certainly could happen.
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.
Under this kind of scenario, you can argue that you are not guilty of GTF by virtue of lack of intent.
The firearm belonged to you, or you believed it did
The so-called “claim of right” defense provides that you can't be convicted of grand theft if the firearm actually belonged to you.
And the “claim of right” defense also applies if you had a good faith belief that the gun belonged to you—even if that belief turned out to be wrong.24
So, for example, you are not guilty under Penal Code 247(d)(2) PC if you mistakenly believed that the gun was one that belonged to you, or that the owner had given it to you.
The total value of the firearm(s) was $950 or less
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.
This can certainly happen with firearms. 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.
For most defendants, theft of a firearm valued at $950 or less is only petty theft—and so carries greatly reduced penalties. So if there is doubt about the value of firearm(s), this defense can certainly be worth your while.
You were falsely accused
It is far too common 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.
It is especially important to have a good lawyer on your side in these situations. S/he will know how to interview witnesses and gather physical evidence in order to ensure that the truth comes out.
As we discussed above, if you steal a firearm worth $950 or less and you don't have one of the specified prior convictions on your record, then you are guilty of PC 488 petty theft—not grand theft firearm.25
Petty theft is a misdemeanor in California law. The maximum penalties are up to six (6) months in county jail, and/or a fine of up to one thousand dollars ($1,000).26
Because these penalties are so much lighter than those for grand theft firearm, it can make a lot of sense to try to get your charges reduced to petty theft—perhaps through a plea bargain—if the value of the stolen firearm(s) is in question.
California Penal Code 459 PC burglary is defined as entering a room, building, or locked vehicle, with the intent to commit a felony (such as grand theft firearm) once inside.27
If a grand theft firearm charge involves larceny of a firearm from inside a home, other building, or car, there is a good chance the defendant will also face California burglary charges.
- A felony if it is committed in a private home; and
- A wobbler (a crime that can be charged as either a felony or a misdemeanor) if it is committed in any other structure.28
The potential felony state prison sentence is two (2), four (4) or six (6) years.29
If you are accused of grand theft firearm, and you have a prior felony conviction on your record, you could also face charges under California's “felon with a firearm” law, Penal Code 29800 PC.
This law imposes criminal penalties on anyone with a prior felony conviction who knowingly possesses or receives a firearm in California.30 As a California felony, felon with a firearm carries an additional sentence of sixteen (16) months, two (2) years or three (3) years.31
Call us for help…
For questions about California's grand theft firearm laws, 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 also invite you to watch our video on Penal Code 487(d)(2) - Grand Theft of a Firearm in California.
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.
For more information on Nevada laws for “grand larceny of a firearm,” please see our page on Nevada laws for “grand larceny of a firearm.”
1 Penal Code 487 PC – “Grand theft” defined. (“Grand theft is theft committed in any of the following cases: . . . (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: . . . (d) When the property taken is any of the following: (1) An automobile. (2) A firearm. . . .”)
2 Penal Code 490.2 PC – Petty theft
4 Penal Code 489 PC – Grand theft; punishment. (“Grand theft is punishable as follows: (a) If the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, or two or three years. . . .”)
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 [including GTF], in addition to the imprisonment prescribed.”)
6 Penal Code 490.2 PC – Petty theft
8 Penal Code 667 PC – Habitual criminals; enhancement of sentence; amendment of section
See also Welfare & Institutions Code 6600(b). (“(b) “Sexually violent offense” means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.”)
9 Glendale criminal defense attorney David F. Poblete is an energetic young attorney who has devoted his career to defending the civil rights of criminal defendants. He is a Filipino-American from a military family who is driven by both a deep sympathy for the “little guy” and a profound respect for the freedoms we are all entitled to in this country. Poblete regularly defends clients accused of theft and other crimes in the Superior Courts of Los Angeles, Orange and San Diego Counties.
10 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.]”)
11 CALCRIM 1804 – Theft by False Pretense (Pen. Code, § 484).
13 CALCRIM 1805 – Theft by Trick (Pen. Code, § 484).
14 See same, 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 CALCRIM 1806 – Theft by Embezzlement (Pen. Code, §§ 484, 503). (“The defendant is charged [in Count ] with [grand/petty] theft by embezzlement [in violation of Penal Code section 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. [A good faith belief in acting with authorization to use the property is a defense.] [In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.] [An intent to deprive the owner of property, even temporarily, is enough.] [Intent to restore the property to its owner is not a defense.]”)
18 Penal Code 489 PC – Grand theft [including grand theft firearm]; punishment, endnote 4, above.
19 Same. See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment, endnote 5, above.
20 Penal Code 1192.7 PC – Definition of “serious felony.” (“(c) As used in this section, "serious felony" means any of the following: . . . (26) grand theft involving a firearm; . . . .”)
21 Penal Code 667(e)(1) PC - Three strikes law. 22 See same.
23 See, e.g., CALCRIM 1800 – Theft by Larceny (Pen. Code, § 484), endnote 10, above.
24 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.")
25 Penal Code 490.2 PC – Petty theft; punishment of certain repeat offender, endnote 2, above.
26 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.”)
27 Penal Code 459 PC – California's burglary law [may be charged along with Penal Code 487(d)(2) grand theft firearm]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store…with intent to commit grand or petit larceny or any felony is guilty of burglary.”)
28 Penal Code 461 PC – Punishment [for burglary—may be in addition to penalties for GTF]. (“Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”)
29 See same.
30 Penal Code 29800 PC – Felon with a firearm. (“(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”)
31 Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)