Petty Theft (Shoplifting)
(Penal Code Sections 484 – 488)
What is Petty Theft (shoplifting)?
Elements of Petty Theft (What the DA must prove)
Where the petty theft is by larceny (simply taking property) the DA must prove all of the following elements beyond a reasonable doubt:
- The defendant took possession of property owned by someone else;
- The defendant took the property without the owner’s [or owner’s agent’s] consent;
- 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
- The defendant moved the property, even a small distance, and kept it for any period of time, however brief.
Petty Theft by Trick
If the petty theft was accomplished by trick, then the DA must prove these elements:
- The defendant obtained property that (he/she) knew was owned by someone else;
- The property owner [or the owner’s agent] consented to the defendant’s possession of the property because the defendant used fraud or deceit;
- 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);
- The defendant kept the property for any length of time; and
- The owner [or the owner’s agent] did not intend to transfer ownership of the property
Petty Theft by Embezzlement
If the petty theft occurred through embezzlement, these are the elements that the District Attorney must prove:
- An owner [or the owner’s agent] entrusted (his/her) property to the defendant;
- The owner [or owner’s agent] did so because (he/she) trusted the defendant;
- The defendant (converted/used) that property for (his/her) own benefit; and
- When the defendant converted 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)
Punishment For Petty Theft
Petty theft is a misdemeanor and is punishable by up to six months in the county jail and a fine of up to $1,000.00. Where a person is charged with petty theft and the value of the goods or services taken is below $50.00, the defendant’s criminal defense lawyer may be able to get the charge reduced to an infraction. However, your criminal defense attorney cannot get this reduction if you have ANY other previous theft convictions on your record.
The reduction to an infraction is discretionary and the District Attorney is not required to reduce the charge to an infraction. That’s why it is important for your theft lawyer to convince the DA to reduce the charge based on your record, your personal factors, and the facts of your case.
If you have a prior theft conviction, then there is a very harsh penalty enhancement that may apply. Under Penal Code Section 666, a petty theft offense becomes a wobbler, punishable as a misdemeanor by up to a year in jail or punishable as a felony by up to three years in the state prison if the defendant has a qualifying prior conviction. So, what does it take for a petty theft charge to be bumped up to a felony under this section? Well, the list is pretty complicated, even for an experienced Orange County criminal defense attorney. But basically, if the defendant has any of the following prior convictions the enhanced punishment applies:
- A person with three or more prior theft convictions, including; petty theft, grand theft, theft from an elder, auto theft, burglary, carjacking, robbery, or felony receiving stolen property AND who served any jail or prison time on the prior offenses; or
- Is a registered sex offender or a person with a prior “strike” offense with a single prior conviction for a theft offense including petty theft, grand theft, elder theft, auto theft, burglary, carjacking robbery, felony receiving stolen property AND the person served some jail or prison time for the prior theft offense.
A “Strike” offense is a serious or violent crime as defined in Penal Code Sections 1192.7(c) and 667.5(c). This is a very long list and includes crimes such as first-degree burglary, robbery, rape, arson, mayhem, murder, carjacking, and inflicting great bodily injury on another.
A person in either of the above categories who is convicted of petty theft, even a simple shoplifting, can be punished by imprisonment in the state prison for up to three years.
Defenses To Petty Theft
Petty theft is a crime of “intent”. If you had no intent to permanently deprive the owner of the property, either permanently or for an extended period of time, then you are not guilty of petty theft. For example, in a shoplifting case, if you absent mindedly carried property from a store without the intent to do so, you have a defense. In such a case if your criminal defense lawyer can provide character witnesses who are willing to testify that it is not within your character to steal, then you are in a strong position.