Bay Area Shoplifting Lawyers

Accused of Petty Theft or Shoplifting in the Bay Area?

We have handled shoplifting charges involving every major area store. Some of the more common are: Fry’s Electronics, Costco, Walmart, Best Buy, Kohl’s, Macy’s, Target and Whole Foods.

We have worked with clients accused of shoplifting, petty theft and grand theft from many major Bay Area retail establishments.

Most of our clients are honest professional people who hire us to keep their record clean. We’ve found that some loss prevention personnel are overly aggressive, often misunderstanding what may be an innocent mistake. In other cases where our clients have done something wrong, we are very creative in negotiating outcomes that avoid the stigma of a criminal record.

Petty Theft – Definitions, Penalties And Analysis.

What is petty theft?

Petty theft is a crime under Penal Code 484 and Penal Code 488 in California. Generally speaking, in most cases it involves the theft, or stealing, of property or services valued at under $950.

Even though this might sound like a relatively minor offense, a charge may affect your future, including your chances of employment. If this is your first charge and you are a first-time offender, there may be ways of avoiding a conviction with the right legal assistance. However, if you have prior convictions, even a petty theft accusation can expose you to serious penalties – if you have been accused of petty theft, you should contact us immediately to discuss your case with one of our experienced attorneys.

What is shoplifting?

Shoplifting is a kind of theft, and one of the most common types of petty theft, if the goods taken are worth less than $950. It is very common for people who actually did not mean to take property to be accused of shoplifting – it’s easy to forget about something you’ve picked up in a store when distracted by children, a phone call, or simple absent-mindedness.

People accused of shoplifting will usually be confronted by loss prevention officers who are employed by the store. They will decide whether to call the police or not. If you are accused of shoplifting by a loss prevention officer, make sure that you call Summit Defense so one of our attorneys can help you. We’ve worked with loss prevention officers from stores all over Northern California, and we’re usually able to help you to negotiate or settle the matter without having to get the police involved.

What is grand theft?

Grand theft is a crime under Penal Code 484 and Penal Code 487 in California. In most cases, it involves the theft of property or services valued at more than $950, or the theft of a vehicle, or of a firearm or gun. You might have heard the theft of a car or other vehicle referred to as ‘grand theft auto’ and of a gun as ‘grand theft firearm’.

Grand theft is a very serious charge, and may involve serious penalties – if you have been accused of grant theft, you should contact us right away so we can start working on your defense immediately.

Can I settle this out of court?

Yes – depending on what stage your case it at, and the exact nature of the accusations against you, an attorney may be able to help you reach an out-of-court, civil compromise[1] or help you get access to a diversion program.  At Summit Defense, our goal is always the compromise or full dismissal of charges, so you can feel confident that we will fight hard to get you the best result possible.

It is essential, however, to try to settle any matter as soon as possible, and certainly before charges are filed. . Your best chance of doing this is with the assistance of a lawyer who has experience in these kinds of matters. Our attorneys include a former District Attorney, former investigator, and former police officer – they have their own experience in investigating these kinds of matters and know how things work from the other side. This means you will have powerful and persuasive negotiators with a full range of experience on your side.

Do I really need a lawyer?

Yes, you do. Not only is it your right, but your best chance of fighting the case against you is by having an experienced criminal defense lawyer on your side. We have handled many cases of shoplifting and other forms of theft allegations that never saw the inside of a courtroom – we are your best chance of making sure that you can avoid court too.

At Summit Defense, we know that early intervention is your best chance of success. It is important to contact a lawyer as soon as you can, because there will be opportunities to settle or negotiate your case at the start that won’t exist later. We handle hundreds of cases and work with the stores, loss prevention officers, and police, to ensure that honest people who may have made a silly mistake are given a proper chance. The sooner you contact us, the sooner we can try to reach a civil compromise in your case, or ensure that you’re able to access one of California’s diversion programs.

In a recent case, a client contacted us after being accused of shoplifting at a large retail store. She was upset to have received a ticket, but had not yet gone down to the Police Station. She told us that it was all a big misunderstanding, as she had forgotten she was carrying some items when she had received an urgent phone call. We were able to intervene early on her behalf, and discuss the matter with the store. Our discussions with the loss prevention officers indicated that there really wasn’t enough evidence to prove the charge against her, and they accepted our client’s explanation that it was a misunderstanding and a mistake. In the circumstances, the accusations were withdrawn and our client never had to see the inside of a police station, let alone the courtroom!

Any criminal accusation is a serious matter and, in the case of theft charges, may have consequences for the rest of your life. If you are facing an accusation of theft or shoplifting, contact us as soon as possible for a free consultation with one of our experienced attorneys.

I’ve been approached by loss prevention officers – who are they, and what powers do they have?

Loss prevention officers are those people, usually employed by big retail stores, who monitor shoppers and work to prevent goods being stolen from the stores. You might also have heard them referred to as store security officers, but they are simply there to monitor shoppers and make sure that no one is taking merchandise without paying for it.

Loss prevention officers do not have the same powers of arrest as the police do. If they suspect someone of shoplifting, they are entitled to apprehend and detain them, but only within limits. If a loss prevention officer asks you to open your bags, for example, they cannot physically force you to do so, but they can require you to stay with them until the police arrive to search you. You might have heard of the power to make a citizen’s arrest – that is the same power that a loss prevention officer has.

If you are approached or detained by a loss prevention officer, it is best to follow their instructions but to say nothing until you speak to a lawyer. At Summit Defense, we have worked with loss prevention officers from every major retailer – including stores such as Wal-Mart, Kohl’s, Macys, and Fry’s – and we have often been successful in negotiating on behalf of our clients so the police are not called at all.

 What should I say to a loss prevention officer?

Nothing – you do not have to tell a loss prevention officer anything, but you can tell them your name and show some identification if requested. Otherwise, it’s best to say nothing until you speak to a lawyer. Ask for the opportunity to call your lawyer, and call us – we can speak on your behalf, and negotiate with the store for you.

If you are accused of shoplifting and detained by a loss prevention officer, it’s understandable that you might want to explain or defend yourself. However, keep in mind that whatever you say at that point will be recorded by the officers and used in any case against you. That’s why it’s best to say nothing until you get some legal advice, and some help in dealing with the accusations against you.

What should I say to the police?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact us immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them. Being charged and going through the arrest process can be a scary and intimidating process, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. We have defended thousands of cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney from Summit Defense is by far your most effective defense strategy.

What is the cost?

When you have your first consultation with an attorney, we will discuss the estimated cost of your case with you. Every case is considered on a case-by-case basis, and depends on various factors, such as the seriousness of the charges against you and the stage that the case is up to.  We will always act in your best interests, and that means keeping costs as reasonable as possible while defending your matter to the full.

One thing is for certain though – the sooner you have an attorney involved in your case, the better. With early intervention, we can do our best to reach an early resolution and keep your case out of court, which also reduces your legal fees dramatically! Call one of our attorneys today to set up your first, free consultation.

Section B – Elements, Defenses, Penalties/Consequences

If I’m arrested, will I go to jail?

Probably not – in fact, most people who are charged with petty theft or shoplifting will not go to jail. They may not even be taken to a police station to be booked but, rather, given a ticket. If you receive a ticket in relation to a theft charge, contact us to discuss your options and the next steps to take.

If you have been accused of a more serious theft, and it looks like you might be facing an arrest or jail, we can usually make arrangements in advance that will help you to avoid having to go into custody – or even settle the matter before the police become involved at all.

If you are arrested, the police will initially take you into custody and to the police station for processing. Once you have been processed at the station, you will have a chance to pay an amount to secure bail from the station itself. In many cases, we will be able to ensure you are released on your own recognizance or on minimal bail.

Only in the most serious of cases or if you do have a criminal history will you possibly be kept in custody until you are taken before a judge and given a chance to apply for bail. At this stage of the process, your best chance of avoiding jail is to have us on your side. As petty theft, grand theft, and shoplifting are non-violent offenses, and many people accused of theft have no criminal histories, we are usually able to ensure release on your own recognizance or on very modest bail.

If you are arrested, you should contact us immediately so we can assist you in securing your release. As highly experienced defense lawyers, we have helped hundreds of clients get bail, and will put together the best case possible to present to the court at your bail hearing.

Is petty theft a felony or a misdemeanor?

In California, petty theft is a misdemeanor.

If you are charged with Penal Code 484 petty theft, including shoplifting, this means that you are accused of stealing property worth $950 or less, which is a misdemeanor. The possible penalties for a misdemeanor are lower than for a felony, and can be reduced substantially with the assistance of an experienced lawyer.

You should also know that there are several ways in which the penalties can be reduced even further, and you might  be able to have any charge reduced to an infraction, or go into a diversion program.

Is grand theft a felony or a misdemeanor?

If you are accused of stealing property worth more than $950, or a vehicle or a firearm, you will be charged with Penal Code 487 grand theft.

Grand theft is a “wobbler”, which means that it can be treated as either a felony or a misdemeanor. The prosecution will determine how you will be charged depending on the circumstances and seriousness of the case, as well as any criminal history that you may have. The penalties and consequences that result from being convicted of a felony can be quite serious. If you are charged with felony grand theft, contact us to discuss your options to reduce or dismiss the charges, and to fight for the best result possible.

What evidence will the Prosecutor use to try to prove a petty theft or shoplifting charge against me?

According to California petty theft laws, there are specific elements of the charge that the Prosecution need to prove in order to secure a conviction against you. Our experienced attorneys will ensure that any gaps in the Prosecution case are exposed, and any defenses available to you are raised properly before the jury.

Where you are facing a petty theft or shoplifting charge in California, the Prosecutor will need evidence to prove these four things beyond reasonable doubt:

1. that you took possession of property that belonged to someone else;
2. that you took the property without the owner’s consent;
3. that when you took the property, you intended to permanently deprive the owner of it; or, that you intended to remove it from the owner’s possession for such a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; and
4. that you moved the property – even a small distance – and kept it for a period of time – even a brief period.[2]

In the case of petty theft, the property taken can be of any value under $950.

Property belonged to someone else

This element means exactly what it says – the thing that you are accused of taking must belong to someone else. This also means, however, that if something belongs to you, you cannot be accused of stealing it.

It is also theft to take services, such as someone else’s work or labor, without paying for them.

Took it without the owner’s consent

In this second element, the Prosecutor must prove that you took the property without the owner’s permission. If the owner had given someone else possession of or control over the property (such as a clerk in a store), it is enough for them to show that you did not have that person’s permission to take the property.

Intended to permanently deprive

This means that the Prosecution must prove that you intended to take the property from the owner, forever. So, imagine that someone walks into a store and places a blouse in their handbag, leaves the store without paying for it, and has no intention of returning it.

Remove so as to deprive owner of value and enjoyment

If the Prosecution cannot prove that you intended to deprive the owner of the property forever, that is, permanently, then this means that they must prove that you intended to take the property for such a period of time that the owner is deprived of a major portion of the value and/or enjoyment of the property.

Take again the example of someone who goes into a store and places a blouse in their handbag, and then leaves the store without paying for it. What if that person actually wears the blouse once, and then tries to return it to the store? That person may still be guilty of theft, because a worn blouse is certainly worth a lot less to the store than a brand new one – even though they eventually try to return the blouse, the person has deprived the store owner of a portion of the value of the blouse, and they may be guilty of petty theft/shoplifting.

Move and keep the property

To prove this element, the Prosecution must show that you moved the property and kept it in your possession – even if only minimally. For example, to take a bottle of perfume from a display shelf in a department store, and then place it so it’s hidden in your handbag, counts as moving and keeping the property.

Value of the property

For a charge of petty theft, in most cases the property must simply be valued under $950.

What is the difference between petty theft and grand theft?

The difference has to do with the value or the type of the property that you have been accused of stealing, or the manner in which the property was taken. The Prosecution are responsible for proving this part of the charge, and if they cannot, then their case might fail.

Property worth more than $950

In most cases, a charge of grand theft relates to property that is worth more than $950. But how do the Prosecution prove the value of the property?

In a lot of cases, it is fairly simple to prove the value of the property. For example, if cash is taken, its value is obvious. If goods are taken from a retail store, then they are marked with a price, which also makes the value obvious. In some cases, though, it can be more difficult. What if someone is accused of taking some property from another person’s home, such as some silver cutlery that is quite old? In that case, the court will look at what the ‘fair market value’ of the property is – that 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”[3].

Automobiles and firearms

Regardless of their market value, if you are accused of stealing a vehicle or a gun, then you have been accused of grand theft.[4]

Theft from the person

In all cases where property is taken from someone else’s ‘person’, then the appropriate charge is grand theft.[5] When the law refers to taking property from someone’s person, they mean that the property was on the person’s body, in their clothing, or in something they were carrying (such as a bag) at the time.[6]

It is important to keep in mind, though, that this kind of theft is different from a robbery, where force is used. Take, for example, a pick-pocket who takes a wallet from the back pocket of a man on the street. The man does not know that his wallet is being taken, and the pick-pocket doesn’t use any force. Even if the wallet itself is old and relatively worthless, and only contains $50 in cash, the pick-pocket could still be charged with grand theft because he took the wallet from the man’s ‘person’.

Other property included in grand theft

The law relating to theft in California also includes several other types of property, which, if stolen, amount to grand theft – even though they are worth less than $950.[7]

These are all quite unusual, though, and most people are not likely to be accused of stealing them. Some examples include “domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops” worth more than $250.[8]

Further, if the charge concerns an employee taking money from an employer over a period of time – known as embezzlement – then if certain smaller amounts add up to more than $950 in a twelve-month period, then grand theft can be charged.

What evidence will the Prosecutor use to try to prove a grand theft charge against me?

The elements that the Prosecution must prove in order to sustain a charge of grand theft are the same as those outlined above, in relation to petty theft. They still have to use the same elements to prove that a theft was committed.

To establish grand theft, the Prosecution is responsible for proving the value or type of property stolen. If the Prosecutor cannot prove, for example, that the fair market value of the property was above $950, then the charge of grand theft fails and they may only be able to establish a petty theft.

If you believe that you have been incorrectly charged with grand theft, contact us to discuss how we can ensure that you are not facing unfair charges.

What is commercial burglary?

Commercial burglary, sometimes referred to as second-degree burglary, is an offense under California Penal Code 460(b). It is a burglary occurs at a store or a business where no one is living. The police often charge people with commercial burglary and petty theft combined, if they think that they have evidence to show that someone entered a store or other business with an intention to commit a petty theft. To prove this kind of commercial burglary, the Prosecution must prove the following beyond reasonable doubt:

1. That you entered a store, business, or some other kind of non-residential premises; AND
2. That at the time of entry, you were intending to commit a theft inside the premises.[9]

Entry

In the case of commercial burglary, the Prosecution need to prove that you, or some part of your body, or some tool or implement that you were using, entered the premises in question. So, this means that it can be considered an ‘entry’ even if you never step foot inside a building or store, and it is enough, for example, if you reach inside a window with the intent of taking something.

Intent to commit a theft at the time of entry

The Prosecution must prove that you had the intent to commit a theft at the time of the entry to the premises. So, it is not enough to charge someone with commercial burglary if they are caught in a store with stolen property – in that case, the evidence would not suggest anything more than shoplifting, at most. However, if there is additional evidence that may prove intent, then the charge of commercial burglary might stick. Examples of this kind of evidence might include someone concealing a pair of scissors to cut off tags in a store, as well as shopping bags from that store to put stolen merchandise in.

Commercial burglary is a ‘wobbler’ – meaning that it can be charged as either a felony or a misdemeanor, depending on the circumstances. If you have been charged with commercial burglary, you should speak to an attorney immediately so we can fight to have this charge downgraded to a misdemeanor, or dismissed altogether.

At Summit Defense, we’ve had many cases of commercial burglary completely dismissed. This is because it’s not uncommon for the Prosecution to try to ‘add’ this charge where there just isn’t enough evidence to support it. Often, they are simply unable to prove that someone had the intent to steal when they entered a store. For example, imagine someone is browsing in a department store and then decides to take something. They put the item in a plastic bag that they are carrying some other things in. That might be shoplifting, but it’s not commercial burglary because the person only formed the intent to steal after they entered the store.

What is theft by false pretenses?

This is a slightly different form of theft under California Penal Code 484 and Penal Code 532. To prove this kind of theft by false pretenses, the Prosecution must prove the following beyond reasonable doubt:

1. That you knowingly and intentionally deceived the owner of property by way of a false or fraudulent representation or pretense;
2. That you did so because you intended to persuade the owner to let you take possession and ownership of the property;

AND

3. That the owner let you take possession or ownership of the property because they relied on your representation or pretense.

The Prosecution is also required to bring special evidence to court to prove the false pretense, as discussed below.

Making a false pretense, or fraudulent representation

The law defines a ‘false pretense’ as any “act, word, symbol, or token” meant to deceive.[10] So, basically, telling another person something that isn’t true.

You make a false pretense or fraudulent representation when you intend to deceive someone and either:

• give information that you know is false;
• recklessly say something is true, even though you have no basis for believing it to be true;
• fail to give information when you have an obligation to do so; OR
• make a promise that you have no intention of keeping.[11]

So, for example, say that a woman goes into a store where a company that she used to work for has an account. She selects goods to the value of $200, and takes them to the counter. She tells the store clerk that the property is for the company, and shows an old business card to prove that she’s an employee. She tells the store clerk that her boss asked her to come to the store and collect these items, and put them on the company account. The store clerk believes her, and lets her take the items without paying for them, and places the purchase on the company account.

In this example, the woman no longer works for the company and clearly has no such authorization from anyone to use the company account. She told the store clerk information that she knew was false, and showed her an old business card when she no longer works for that company, with the intention of deceiving the store clerk. By doing these things, and taking the property without paying for it, the woman may have committed petty theft by false pretenses.

Intent to persuade the owner to let you take possession and ownership

This means that the Prosecution must prove that the reason you made the false pretense was because you wanted to persuade the owner to let you take the property. Also, it could be that you persuaded the owner’s agent – someone that they had given permission to control the property to – to let you take the property. This is usually the case in stores, where the owner is not present, but the people working in the store are responsible.

If we think of the example of the woman, from above, who is falsely claiming to have permission to use a company account at a store, we can see that the reason she lied to the store clerk was so the clerk was persuaded to let her take the property without paying for it, and to put the purchase on the company’s account. By taking the property from the store, it’s clear that the woman is taking both possession and ownership of it.

The owner relied on the false pretense or representation

The final thing that the Prosecution has to prove is that the owner of the property relied on the false pretense or representation. This basically means that they have to prove that the lie the owner was told was the reason, or a main reason, why they gave the property to the defendant.

In our example of the woman in the store, above, we can see that the store clerk only gave the property to the woman because she believed she did work for the company and had permission to use the company account. This means that the store clerk relied on, or trusted, what the woman told her.

Special evidence required

Remember – it is not enough for the Prosecution to ask a jury to convict on a charge of theft by false pretense without bringing some extra, special evidence to court.

They must prove that you made the false pretense, and also bring evidence of one of the following:

• a false writing or false token (such as a false ID card);
• a note or memorandum of the false pretense, signed by you;
• testimony from at least two witnesses;

OR

• testimony from one witness, plus some other evidence.[12]

So, if we take our example of the woman who falsely represents to the store clerk that she has permission to use the company account, the Prosecution would need more than just the testimony of the store clerk to prove the woman guilty of theft by false pretenses. There are several other kinds of evidence that they might be able to produce. If, for example, the woman signed some kind of register or receipt kept by the store that might be sufficient. If the store clerk got her supervisor to speak to the woman as well, and the supervisor comes to court to testify, then that would count as testimony from a second witness. However, if the Prosecution had no more evidence, other than the testimony of the store clerk, then the jury could not convict the woman of petty theft.

What is theft by trick?

This is another form of theft under California Penal Code 484. To prove theft by trick, the Prosecution must prove the following beyond reasonable doubt:

1. That you obtained property that you knew was owned by someone else;
2. That the owner of the property, or their agent, consented to your possession of the property because you used fraud or deceit;
3. When you obtained the property, you intended to permanently deprive the owner of it; or, you intended to remove it from the owner’s possession for such a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;
4. That you kept the property for a length of time (no matter how brief);

AND

5. That the owner did not intend to transfer ownership of the property to you.[13]

The essence of this offense is that the owner is persuaded to give you possession of the property because you use some kind of fraud or deceit, that is, you tricked them into giving it to you. When the owner gives it to you, they do not think that they are giving you ownership of the property, but just loaning it to you or otherwise letting you have it for a shorter period of time or for some purpose.

Let’s consider an example. Say that you do not have a car, but you want to go away for a couple of weeks. You tell your neighbor that you have to pick up some supplies from the store and ask them if you can borrow their car. Your neighbor agrees to lend you their car for the afternoon. However, you take the car and go away for several weeks, only returning it after that. Your neighbor couldn’t get to work and almost lost their job. Even though you returned the car, you may still be guilty of theft because you lied to your neighbor in order to get them to let you use the car, and you deprived them of the car for a substantial period of time.

What is the difference between theft by false pretenses and theft by trick?

They may sound very similar, but the difference lies in whether or not the owner intended to give you ownership of the property or not.

If we consider the example of the neighbor and their car, we can see that the neighbor never intended to give away ownership of the car – they were just allowing someone else to have possession of it. Taking the car for several weeks therefore amounts to theft by trick.

On the other hand, if we go back to the example of the woman at the store, falsely claiming that she had permission to use the company account to purchase goods, then we can see that the clerk gives her both possession and ownership of the goods. When the woman leaves the store without paying for the goods, she is not only in possession of them, she is taking ownership of them as well. This makes the offense theft by false pretense.

What is theft by embezzlement?

Embezzlement is a specific form of theft, under California Penal Code 503. It involves someone who is in a position of trust taking another’s property. Embezzlement can be a very serious charge – if you have been accused of embezzlement you should contact a lawyer immediately, and you can read more about it here.

What defenses can I use to fight a petty theft, shoplifting, or grand theft charge?

There are many defenses that can be used to fight a petty theft, shoplifting, or grand theft charge. But don’t forget that early intervention is your best ‘defense’ – especially in the case of a petty theft allegation, dealing with an accusation before charges are  filed is the best approach, and something we specializes in.

Once the police have become involved, however, defending a criminal charge can become a difficult and complex matter, so your best chance of beating theft or shoplifting charges is to have an experienced attorney fighting for you. If you want to defend a theft charge, contact us now to speak with an attorney who will be able to fight for you.

But I didn’t do it!

Perhaps you have been falsely accused, perhaps someone else did it, or maybe the evidence that the Prosecution has is wrong or misleading – whatever the case, we can help. We will investigate the case further, closely examine the evidence that the Prosecution intend to use against you, and find any holes in their case.

It was an accident!

At Summit Defense, we understand that it’s easy to get distracted in a store. You might have children who are distracting you, maybe you got a phone call and got distracted, or you simply forgot what you were holding on to while wandering from one department of a store to the next. Most people who have been accused of shoplifting are honest, professional people who have made a silly mistake, or taken something when they’re stressed or absent-minded. If you didn’t mean to steal anything, call us – we don’t believe that it’s worth getting a criminal conviction because of one small error, and we’ll fight to make sure that your record remains clear.

I was entitled to the property!

This kind of defense is known as a ‘claim of right’. This means that you believed that you had a rightful claim to the property. It doesn’t matter if your belief was wrong or unreasonable; to successfully raise this defense you just have to show that you held the belief in good faith. One of the most important ways of demonstrating your good faith belief is that you were open about your claim to the property, and didn’t try to conceal it.

For example, imagine that you have lent some money to a friend. One day, you need to cash back and you ring your friend to ask her for it. She tells you that she’s not home at the moment, but that you can go around to her house and get it from a box on her kitchen table. When you go over to her house, her room mate lets you in, and you take some cash that’s in an envelope in a box on the table. It turns out that you took the wrong envelope, and that money belonged to your friend’s boyfriend. Nevertheless, you’re not guilty of theft because you had an honest belief that you were entitled to that cash because of what your friend told you.

I wasn’t taking the property from the owner!

This is a defense where you assert that you did not have the intent to deprive the owner of their property or to use it for your own purposes. Sometimes, if you were only taking the property from someone for a very short period of time, that can be a defense to a charge of theft.

For example, imagine you are having a fight with your brother or sister about how they never take your calls. To ‘teach them a lesson’, you take their cell phone from them and hide it for a few hours, before giving it back. In the circumstances, and given that you did not intend to take the phone from them for good, or even for a very long time, you would be able to defend any theft charge that was brought against you.

If you have further questions about defenses to theft or shoplifting charges, you can read some more specific answers to common queries below.

What are the penalties for petty theft and shoplifting?

The penalties for petty theft, including shoplifting, differ in California based on the circumstances of the offense. Further, when sentencing, the judge will take into account various personal factors as well as your criminal history. The penalty that you receive for petty theft can vary widely, depending on the case you are able to put before the judge. There are also ways of avoiding a penalty altogether, if you have an attorney to help guide you to accessing diversionary schemes.

To put your best case forward, you should have an experienced attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and our ultimate goal is always the complete dismissal of charges against you. Even if dismissal is not possible, we will be able to help you achieve the most lenient penalty for your case.

What I stole wasn’t worth much, what’s the worst that can happen?

If you’re a first time offender, and the property that you have been accused of stealing is not worth very much at all, then your exposure to any sort of criminal penalty is very minimal.

First-time offenders

If you are a first-time offender in California, you may be able to have your charge reduced to an infraction, or you may be able to participate in a diversion program and have the charge dismissed entirely!

In California, first time petty theft offenders are treated differently across the various counties because of the differing availability of diversionary programs. Our attorneys have experience at courts across Northern California and the Bay Area, and we can assist you in navigating the system.

In general, if you are facing your first charge for theft or a theft-related offense, and the items are of a relatively small value (under $50, or under $100), then your attorney may be able to convince the judge or the Prosecutor to allow you to participate in a petty theft diversion program. This usually involves you completing some kind of class, or community service, after which the charges against are dismissed entirely.

Another option is for first-time offenders is for your attorney to convince the Prosecutor to reduce your misdemeanor charge to a less-serious infraction. This is possible where the value of the property taken was $50 or less.[14] If this happens, then the penalty is a fine of no more than $250.

Regardless of the kinds of schemes available, with a Summit Defense attorney by your side, you stand a great chance of having the charge dismissed altogether. Otherwise, the usual penalties for first-time petty theft are things like fines, restitution, or community service. While the maximum penalty is a fine of $1,000 or imprisonment for 6 months, or both[15], you’re unlikely to face anything near that serious for a minor, first-time offense.

It’s my first offense but the goods were valuable – does that make a difference?

The value of the goods is certainly something that the courts take into account – but every case is different. So, the fact that you have been accused of stealing something expensive is not the end of the matter. Other things that are taken into account include your history, standing in the community, and many other mitigating factors.

This doesn’t mean that the Prosecution won’t go in hard – they might even be pushing for jail time. But we won’t let that happen – an experienced attorney from Summit Defense will make sure that, regardless of the value of the goods, you are still able to access all of the opportunities given to first-time offenders, and will fight to keep your record clean.

I’ve been charged with theft before – do I have to go to jail?

If you have prior theft or theft-related offenses on your record, then you are potentially exposed to more serious penalties. You should seek legal representation immediately, as this are of California petty theft law can be quite complex.

Generally speaking, if you have previously been convicted of certain theft offenses, then you might have to face a more serious penalty. However, that only occurs in limited circumstances, and at the judge’s discretion. This exposure to more serious penalties only occurs if you also have a prior sex-crime conviction for which you have to be registered as a sex offender, or if you have a previous conviction for a serious or violent felony. If you fit into that category, then your petty theft charge becomes a ‘wobbler’ – this means that even a petty theft charge against you might be treated as a felony, and you may be facing jail time![16]

If petty theft with a prior is treated as a misdemeanor, then the maximum penalty goes up from 6 months to 1 year.[17]

If petty theft with a prior is treated as a felony, then the maximum penalty is up to three years in prison.

Overall, keep in mind that every case is different. If you have a prior offense, you need help to avoid these harsh and sometimes very unfair penalties.  We have had many clients with prior charges whom we have helped to avoid jail and we’ve often had their cases dismissed altogether.

What are the penalties for grand theft?

Grand theft is one of those offenses known as a “wobbler”, which means that it can be treated as either a felony or a misdemeanor. The prosecution will determine how you will be charged depending on the circumstances and seriousness of the case, as well as any criminal history that you may have.

If you are convicted of grand theft as a misdemeanor, the maximum penalty is usually one year in jail, but will usually be something less serious such as a fine or community service.[18]

If you are convicted of grand theft as a felony, the maximum penalty is between 16 months and 3 years in prison, depending on the circumstances.[19]

Your Summit Defense attorney will always fight for the dismissal of charges against you, and to persuade the Prosecution to treat a grand theft charge as a misdemeanor wherever possible.

What factors will the judge take into account when sentencing me?

Apart from any criminal history, in any kind of case the judge will consider the certain specific circumstances of each case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.

There are some common factors that occur in many theft cases – for example, if you pay back the money or replace the property, then that would be taken into account as a mitigating circumstance. On the other hand, if you steal from a “dependent person” – that is, from someone who is dependent on you, such as someone you are paid to care for – then that would be taken into account as an aggravating circumstance. An experienced attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.

In many theft cases, the person charged is an otherwise honest, professional person who slipped up, or made a silly mistake. We have represented many people who were suffering from stress or depression when charged with theft or shoplifting. If you need help in explaining to the court why you might have made such a mistake, we understand and can help you put these facts before the judge.

What other consequences can occur as a result of being convicted of petty theft, shoplifting, or grand theft?

There can be serious repercussions, beyond facing criminal penalties, if you are convicted of a theft offense. That is why our first and foremost goal is always the complete dismissal of all charges.

If you are convicted of theft, your immigration status could be affected, and your chances of future employment may be seriously damaged. If you want to try to avoid these very serious consequences, you should get legal advice and assistance at the earliest opportunity. Contact Summit Defense Attorneys to discuss your case in full, and how we can help you try to avoid any negative consequences.

Section C – Specific Offense Q+A

I was depressed or stressed-out, and didn’t really think about what I was doing.

It may be that you feel ashamed or embarrassed about what you have done, but you might be surprised to know that many people have found themselves in the same situation. When you are feeling stressed or depressed, dealing with every day life can become more difficult. To make things worse, stores and shopping malls are designed to overload our senses and make us feel like we ‘need’ to have the things on display. A common reason that otherwise honest people might feel compelled to take something or shoplift is sometimes known as the ‘shoppers high’ – that feeling you get when you get something that you want, something new and momentarily exciting. In many theft cases, this is exactly what has happened.

If you were feeling overwhelmed and suffered from a momentary lapse in judgment, we can help you to overcome a theft or shoplifting charge without it having an unnecessary impact on your life.

I was going to return the property. Is that a defense?

In the case of theft and shoplifting offenses, returning the property is not usually a defense. However, it can show the court that you made a mistake, or that you suffered from only a momentary lapse in judgment. Such an action can help to substantially reduce any penalty you might face.

It was an accident; I didn’t mean to steal it. Is that a defense?

If you honestly forgot about the property that you were carrying, or were otherwise absentminded, then it may be a defense to a theft or shoplifting charge. It can, however, sometimes be hard to convince a judge or a jury that was the case – the lawyers at Summit Defense will ensure that the jury knows that you are an honest person who slipped up, and never meant to take anything.

What if I return the property?

Unfortunately, returning the money or property is not enough to avoid a charge of theft or shoplifting altogether once the Police are involved. However, there are several options that may help to reduce your exposure to criminal penalties that we can help you with. If you have been accused of theft but have returned the property, or are thinking about it and intending to, then contact us immediately so we can assist you and make sure that your rights and interests are fully protected.

Firstly, if the Police are yet to be involved, we can help you negotiate with the person making accusations against you, and achieve a civil, out-of-court settlement that will avoid the criminal justice system altogether.

Even after the Police have become involved, we can assist you in reducing the penalty you might face substantially, or even altogether. If nothing else, returning the property can demonstrate to the court that you are sorry for what you did and have tried to make things right – and the judge will take such action into account in any sentencing decision.

Another option that may be open to you is to go into one of California’s diversion programs.

Finally, Section 1378 of the Penal Code[20] gives the judge discretion to stay the prosecution against you and discharge the charges, in the event that you fully compensate the victim and pay all costs. It can be difficult to convince a judge to take this course of action, but with an experienced attorney on your side, you’ll be in a position to present the strongest case possible.

Do they have to prove the value of the property I took?  What if they say it’s worth more than it really is?

The Prosecution must prove the value of the property, as we discuss above.  In cases where the value of the property is disputed, and the Prosecutor says that it is worth more than you think it is, then you should absolutely fight to have the true value recognized. The value of the property can affect the level of charge that you might face, and therefore the seriousness of the penalty. If there is a dispute about the value of the property, you should seek the assistance of one of our experienced attorneys immediately.

[1] California Penal Code 1377 – “When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised, as provided in Section 1378, except when it is committed as follows:

(a) By or upon an officer of justice, while in the execution of the duties of his or her office.

(b) Riotously.

(c) With an intent to commit a felony.

(d) In violation of any court order as described in Section 273.6 or 273.65.

(e) By or upon any family or household member, or upon any person when the violation involves any person described in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.

(f) Upon an elder, in violation of Section 368 of this code or Section 15656 of the Welfare and Institutions Code.

(g) Upon a child, as described in Section 647.6 or 11165.6.

[2] Judicial Council of California Criminal Jury Instructions, Instruction 1800 reads (in part): “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.”

[3] From Judicial Council of California Criminal Jury Instructions, Instruction 1801.

[4] California Penal Code 487(1) and 487(2).

[5] California Penal Code 487(c).

[6] Judicial Council of California Criminal Jury Instructions, Instruction 1801 reads (in part): “Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person.”

[7] See California Penal Code 487.

[8] California Penal Code 487(1)(A).

[9] Judicial Council of California Criminal Jury Instructions, Instruction 1701.

[10] Judicial Council of California Criminal Jury Instructions, Instruction 1804 reads (in part): “A false pretense is any act, word, symbol, or token the purpose of which is to deceive.”

[11] Judicial Council of California Criminal Jury Instructions, Instruction 1804.

[12] Judicial Council of California Criminal Jury Instructions, Instruction 1804.

[13] Judicial Council of California Criminal Jury Instructions, Instruction 1805.

[14] California Penal Code 490.1 reads (in part): “490.1.  (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.”

[15] California Penal Code 490 reads: “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.”

[16] See California Penal Code 666.

[17] See California Penal Code 666.

[18] See California Penal Code 489(c).

[19] See California Penal Code 489 (a) and (b).

[20] California Penal Code 1378 reads: “If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense.”