San Diego Theft Attorney
San Diego Criminal prosecutions, as the rest of state theft crimes, fall under a single penal code statute; CA Penal Code 484. Whether you are alleged to have committed larceny, embezzlement or receiving stolen property; all of these offenses will be charged under PC 484. Following an arrest, a prosecutor must prove that an individual unlawfully took the property or labor of another. However a conviction cannot rely on a simple showing that an unlawful taking took place. In fact, the prosecution is required to present evidence which supports the elements of a specific offense like larceny.
What Proof is Required for a Theft Crime?
(1) A person took the personal property of another,
(2) When they took the property the individual intended to permanently deprive the other person of that property AND,
(3) The person obtained physical possession and control of the property for some period of time by moving the property in some way.
The “taking” part of the crime is simple to understand and is satisfied if the property was taken against the owners will or without their consent. There doesn’t have to be a physical or forceful taking of property since even fraud or deceit can qualify as an unlawful taking.
Perhaps the most crucial element of a theft crime charge is the defendant’s intent to permanently deprive the owners of their property. Intent to permanently deprive seems obvious, however it can often be a very contentious part of a theft defense case. The intent to permanently deprive must exist at the time of the taking and cannot be formed afterward. Taking a car on a joy-ride for example can be charged as many offenses which do not rise to grand theft.
Grand Theft vs. Petty Theft
The major distinction in these offenses is the value of goods or services involved. If the value is $950 or less the crime charged will be petty theft and is always a misdemeanor. If the total amount taken is alleged to be over $950 this is Grand theft under Penal Code 487. Grand theft can still be charged or negotiated to a misdemeanor but this depends on the defendant and the facts of each case. The decision to charge as a Felony or Misdemeanor is made by the Prosecutor and depends on:
(1) the circumstances of the defendant’s specific case; and
(2) past criminal history.
Embezzlement was at one time a separate offense from other theft crimes. However it now comes under the Penal Code 484 theft statute. Embezzlement differs from other theft crimes because it involves a defendant who attempts to use or control property that was given to them with permission. Embezzlement is a criminal case that comes up in employee and work relationships. Taking funds from a company by use of a company credit card is a serious felony theft case. A defendant facing theft charges often has a long career with the company making a criminal complaint. Illegal use of credit cards or company checks can also trigger federal criminal charges.
Larceny by trick is a common offense that is charged in instances where the person uses fraud or trick to obtain property. Obtaining funds from a bank account using an ATM card when it is known the account has insufficient funds or submitting fraudulent bills to insurance companies are some examples of larceny by trick. If you have leased or rented personal property and fail to return it within a certain time period this can make you vulnerable to a charge of theft by fraud.
Theft Involving Services
Receiving money for services or labor that has been promised but failing to provide these services can be grounds for a criminal charge of theft. If you have deprived another of money or property even temporarily you may be found guilty of theft. The important factor in these cases is the intent of the defendant. The State or Federal Government must show specific intent to defraud or deprive another of their money or property. For example if you contract to do home repair work and receive money up front without any intent to actually complete this work you may have committed a crime. Diverting funds received for one purpose and willfully using them for another is also theft under Penal Code 484b.
Elements of the Offense
What does the prosecutor have to show in court to prove a defendant guilty? The most significant aspects of any theft case are:
(1) the intent to steal an item or money; and
(2) the actual moving or taking of that property.
Taking an item with the intent of returning it to the store for credit or refund can be sufficient to satisfy the first element. The second element can be satisfied even if you are accused of shoplifting and you have not left the store. Even the slightest movement of an item with intent to permanently deprive the owner of that item is theft.
Building a Defense to Theft
An experienced criminal defense attorney knows that there are many motions that can be made on your behalf even prior to your arraignment. Looking through the available evidence interviewing witnesses and scrutinizing the prosecutions allegations are essential first steps in fighting your case.
If you had permission to take certain property, this is the strongest defense to any theft arrest or charge. The testimony or declaration of the property owner indicating that you had specific permission to take the property can entirely negate the criminal charges you are facing.
Mistake of fact is a common defense to these charges wherein the defendant has an honest belief that they were entitled to possession. This defense requires more proof than a mere vague belief that you were entitled to possession. A true belief will require other witness testimony or written evidence that can persuade a judge or jury that the taking of the property was an honest mistake and not done with criminal intent.
The evidence gathered in a theft crime case can be challenged and even made inadmissible in court through the use of 4th amendment search motions under CA PC 1538. A defendant who was stopped and searched without a warrant could have a good legal argument to ask the court to throw out evidence obtained by police. If you were searched and found in possession of some stolen property the prosecution must establish that police had a right to search you in the first place. This suppression motion is effective and should be strongly considered for every serious theft case.
Consequences of a Theft Conviction
Petty theft offenses can involve a jail sentence of up to six months and fines of $1,000. In addition you will likely be put on probation with the condition that you waive your constitutional right to be protected from search and seizure. If you have previously been convicted of a petty theft then your second offense could enhance your sentence with the possibility of one year in jail or 16 months to three years in California State Prison if you are charged with a felony. For defendants who are young or with no serious criminal past there are many options available. You can preserve your clean record with diversion programs. Setting up a diversion contract for theft requires commitment and willingness to accept guilt for the charges. Success in these programs depends on the defendant and complying with terms given by the court.
Remember that not all criminal defense cases are the same. They involve different personalities, backgrounds, and circumstances that must be carefully examined during the course of the case. We will start working for you as soon as you secure our services. Contact our to our office in San Diego today to learn more about our approach to theft and about how we can help you with your case.