THEFT IN CALIFORNIA

The unlawful taking of property can be punished as theft in California. The law (in both California and elsewhere) has historically referred to different types of theft by different names. “Larceny” was usually the right charge where the defendant physically took property away from the victim. “Larceny by trick” and “false pretenses” were used to describe takings by fraudulent or deceptive practices. “Embezzlement”, meanwhile, could refer to a situation when the defendant is entrusted with control of someone else’s things, and then abuses that trust by taking them for personal use or gain. California Penal Code Section 484 (“PC 484”) now considers all of these crimes together as “theft.”

How a person can be convicted of theft in California

A person can commit theft under PC 484 in four main ways: by larceny, by trick, by false pretenses, or by embezzlement.

• Elements of Theft: larceny

To convict a person of theft by larceny, the prosecution has to prove, beyond a reasonable doubt, that

• The defendant took someone else’s personal property 
• The defendant moved/carried the property,
• The defendant took the property, without claim of right, AND
• The defendant intended to permanently deprive the owner of the property.

If, after hearing all of the evidence, the jury has any reasonable doubt as to even one of these four elements, then it will find the defendant “not guilty” of theft by larceny. For example, if the jury is convinced beyond a reasonable doubt that the defendant took away someone else’s things with the intent to permanently deprive the victim, but they had reasonable doubt as to whether the defendant lacked a “claim of right”, then they would find the defendant “not guilty.” 

• “Taking”-must be “trespassory”, which means that it was without the owner (or possessor’s) permission!

In larceny (and in any theft case), the property at issue must be taken without proper permission. The courts often describe this as a “trespassory taking”, because when someone steals from another, they “trespass” against that person’s rights over that property. However, the terms “trespass” and “trespassory” in a theft case have nothing to do with trespass onto someone else’s land or buildings; the prosecution does not have to prove that the defendant went onto someone else’s land in order to convict the defendant. 

It is also worth noting that a person can commit larceny not just by taking something away from its owner but also from anyone who has lawful possession of the thing. For example, if a person rents a car, and the defendant were to steal it, then the defendant has probably committed larceny even though they only took it “from” someone who did not hold title to the car. When discussing theft cases, California courts might use the words “owner” and “possessor” interchangeably, without any regard for who is the legal owner or title-holder of the property.

In some cases, however, the defendant might take property from another person under the mistaken belief that the property is actually their own. Evidence of this can bleed into the issue of whether the defendant has a “claim of right” to the property and is addressed further in the below section on “defenses.”

• “Stealing from thieves” is still stealing!

It is no defense to a larceny charge (or any theft charge, for that matter) to argue that the defendant took property away from someone who had no lawful right to it in the first place. Stealing an already stolen car is still theft under California law.

• Theft of lost property

Ordinarily, when you find lost property lying around, you have no duty to return it to its owner. However, if you find lost property, and you know or should know who it belongs to and choose not to return it, then this could count as a type of theft under California law as well. The most obvious example here would be finding a wallet lying on the street with identification inside of it. Even though you did not take it from the owner’s person, if you continue to hold onto it after picking it up, you might be guilty of theft because you know or should know that it belonged to someone else at the time that you found it.

• What about cars?

Cars, like any other type of property, can be subject of a theft charge in California as well. However, there is something specific about car theft that is worth mentioning: when a person rents a car and does not return it for five days after the rental period expires, there is a “rebuttable presumption” that the defendant intended to permanently deprive the owner of the car. This means that, at a trial where the defendant is alleged to have stolen a car by keeping it long after the agreed-upon rental period, the judge will instruct the jury that they can “presume” that the defendant intended to steal the car simply based on keeping the car for five days past the rental period. This makes the prosecution’s burden of proof easier in this types of cases, which then makes it easier for the defendant to be found guilty and possibly imprisoned for a theft charge.

• “Personal property” even includes things that might be “worthless”

However, not all theft charges involve something as obviously valuable as a car. Even small and apparently worthless items can be the subject of a theft charge in California, like an empty box. All that the matters is that the thing taken has some value on its own, or could be valuable to someone. The courts have interpreted this concept broadly. 

• Must have intent to “permanently” deprive, but not literally

A defendant is not guilty of theft or larceny in California unless they intend to permanently deprive the victim of the property. So, a in case where the defendant sees the victim’s car with its keys running, decides to take it for a “joy ride” and bring it back, then that defendant is probably not guilty of theft of the car because they never intended to permanently take the car away from its owner (though the defendant might be guilty of theft of the gas used, depending on how the evidence comes out). The defendant also has to form the intent at the time of the taking. So, if the defendant takes the car while they plan to return it, and only later decide to keep it, then this would not count as theft by larceny. But, if the defendant takes the car at first planning to keep it, and only changes their mind later on during the drive and decides to return the car, then this would count as theft by larceny.

It should be noted here that where the defendant steals something with the intent to permanently deprive it, but then later returns it or pays restitution, this is not a defense a theft charge. All that matters is that the defendant committed the taking with the intent to permanently deprive the owner of it.

In some cases the defendant takes property planning to return it, but only as part of a scheme to then trick the rightful owner into paying them for it. A defendant who steals a shirt from a store and then tries to convince the store that they rightfully purchased it and would like a refund is probably guilty of theft, even though they intended to return the property that they initially “took.”

• Elements of theft: embezzlement

Embezzlement is a type of theft that occurs when the defendant is trusted to look after or hold property and abuses that trust in some way. A person who makes off with their company’s money might be guilty of embezzlement. To prove embezzlement, the prosecution has to prove, beyond a reasonable doubt, that

• The property owner entrusted the defendant with control or possession of property
• The defendant fraudulently took the property to benefit themselves, AND
• The defendant took the property with the intent to permanently or temporarily deprive the owner of the property.

Notice here that even the intent to temporarily deprive the owner can count as theft by embezzlement. 

• Elements of theft: theft by false pretenses

Theft by false pretenses occurs when the defendant takes someone else’s property by some form of deception or fraud. The prosecution has to prove that

• The defendant intentionally deceived someone else by saying something that wasn’t true and/or by withholding material information,
• The Defendant did this in order to persuade the victim to give up their property to them, AND
• The victim relied on these statements or omissions by the defendant to turn over ownership and possession of their property

In cases of theft by “false pretenses”, the victim might “agree” to give their property over to the defendant, albeit by some deception on the defendant’s part. In this way, theft by false pretenses (as well as theft by trick, explained below) support the position that consent by fraud is not valid consent, and so it still counts as theft.

• Elements of theft: theft by trick

Like theft by false pretenses, theft by trick involves the taking of someone else’s property by deceptive or fraudulent means. The prosecution has to prove, beyond a reasonable doubt, that

• The defendant took possession of someone else’s property, AND
• The defendant used fraud or deceit to do so

The key difference between theft by trick and theft by false pretenses is that the former only concerns fraud to gain possession of someone else’s property, whereas false pretenses is committed when the defendant gains both possession AND ownership of the victim’s property.

Although the Penal Code recognizes many different types of theft, they are all punished the same way. The defendant’s exposure to longer or harsher sentences usually turns not on whether it is a case of larceny or embezzlement, etc., but on what exactly was stolen or what its value was (see below section on possible sentences).