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What is Grand Theft?

The crime of theft is set forth in California Penal Code §484. There are a number of elements the Prosecution must prove to establish that the Defendant committed theft. This article will delve into the specifics of various forms of theft, and the elements the Prosecution must prove for each of them. A threshold question is whether the crime is a “Grand theft” or a “grand theft.” CALCRIM 1801[i] provides guidance on the distinction between a “Grand” theft, and a “grand” theft. The distinction has a bearing on the penalties a convicted Defendant may face. Regardless of whether the theft is Grand or gran, the Prosecution must also prove how the property was stolen. There are several forms of theft, each of them slightly different from the others. This article will focus on: (1) Theft by Larceny, (2) Theft by False Pretense, (3) Theft by Trick; and (4) Theft by Embezzlement.

The Prosecution must prove each and every element of whichever variation of theft the Defendant has been accused of. In the event the Prosecution is unable to meet their burden, the Defendant cannot be convicted of the crime. Since the burden is on the Prosecution, a common defense strategy is simply to negate one or more of the elements of the crime the Defendant has been accused of. As such it is essential to understand every element of the crime. Los Angeles Criminal Lawyer has decades of combined experience representing individuals accused of criminal conduct, and have obtained favorable results for many of their clients. The attorneys at LACL have an intimate understanding of every element of criminal charges, including theft. Utilizing this knowledge, they are able to execute their defense strategy with skill and professionalism. The remainder of this article will focus on: (1) The elements of Theft by Larceny, (2) The elements of Theft by False Pretense, (3) The elements of Theft by Trick, (4) The elements of Theft by Embezzlement, (5) The penalties associated with a conviction for Grand Theft; and (5) What Los Angeles Criminal Lawyer can do to assist you if you have been accused of Grand Theft.

What is Grand Theft by Larceny?

The jury instructions detailing the crime of Theft by Larceny are set forth in CALCRIM 1800. In a general sense, a Theft by Larceny occurs when an individual physically grabs another person’s property, and carries it away. In order to be convicted of Theft by Larceny, the Prosecution must prove the following 5 elements beyond a reasonable doubt:

  1. You obtained possession of property, which belonged to someone else;
  2. The owner of the property did not consent to the taking;
  3. At the time of the taking, you intended to permanently deprive the owner of that property;
  4. You moved the property, even a small distance; AND
  5. The value of the property was over $950

Gaining Possession of Somebody Else’s Property

As a practical matter, this element is easily proven as it is common sense. An important note however, is you cannot be convicted of Theft by Larceny if the property did not belong to someone else, even if you believed the property belonged to someone else. As such, this element is particularly susceptible to legal arguments relating to property law. Thus, if you believed that the property you took actually belonged to the Victim, but you were the legal owner under the law, you have not committed a theft.

Without the Owner’s Consent

A common defense to the crime of Theft by Larceny is that the owner consented to the taking of their property. This typically boils down to a he said/she said situation. Having a skilled trial attorney in these situations is particularly beneficial to a Defendant who believes the Victim agreed to them taking the property.

There are a number of situations where apparent consent is not legal consent, this occurs when the Victim does not have the legal capacity to consent. Examples of this are: (1) a Victim who was intoxicated at the time they consented or under the influence of other drugs, (2) a Victim who due to mental illness is unable to understand what they are consenting to; and (3) a Victim who is so mentally disabled that they are unable to appreciate what they are consenting to.

Intent to permanently Deprive

As mentioned above, the crime of theft is a “specific intent crime”, which means at the time of the taking, the Defendant must have had the intent to permanently deprive the true owner of the property. “permanently deprive” has been held to encompass taking property in a manner that deprives the true owner of a major portion of the enjoyment or value of owning that item.

Movement of the Property

This element is known as “asportation” and requires three prongs of proof: (1) the property was completely severed from the custody of the true owner, (2) the stolen property is completely in the possession of the thieves or thief, and (3) the stolen property is moved, regardless of how minor the movement is.

The Value of the Property is Over $950

A critical issue in theft cases is the value of the item that was stolen. For purposes of theft, the value of the item is the Fair Market Value (“FMV”) of the item. FMV, in turn, is defined one of two ways: (1) FMV is the highest value the item would reasonably be sold for in an open market during the time period, and in the location of, where the property was stolen from; or (2) FMV is a reasonable price that people would have been agreed on if neither person urgently needed to sell the stolen property.

Example:

Tom owns three baseballs signed by Babe Ruth, and decides he’d rather make a few dollars rather than have the baseballs sit around worthless. Tom agrees to lease the ball to Vince for six (6) months. After five months and fifteen days, Tom decides he wants his baseball to decorate his living room. Tom asks Vince for the ball back, and Vince refuses, pointing out that the ball is still his for fifteen more days. Frustrated, Tom enters Vince’s house using the spare key he was given a year ago when Vince went on vacation. Tom has committed a Theft by Larceny. The baseball was legally Vince’s property for fifteen more days. Since Vince said no when Tom asked for the baseball back, it is clear that he took the ball without Vince’s consent. Tom wanted to decorate his living room with the baseball, so he intended to permanently deprive Vince of the value of the baseball. Tom moved the property. Since the value of the game is likely over $950 Tom will be charged with Grand Theft by Larceny.

What is Grand Theft by False Pretense?

California Penal Code §532 defines the crime of Theft by False Pretense. The jury instructions for Theft by False Pretense can be found in CALCRIM 1804. There is an important distinction between Theft by False Pretense and Theft by Trick. The crime of False Pretense requires that the Defendant gain legal ownership of the property; the Victim must have willingly transferred their ownership interest in property to the Victim as a result of the Defendant’s false representations. To obtain a conviction for Theft by False Pretense, the Prosecution must prove five elements beyond a reasonable doubt:

  1. The Defendant deceived the rightful owner of property;
  2. The Defendant used false pretenses to deceive the owner.
  3. When the Defendant engaged in the conduct set forth in (1) and (2), they did so with the intent that they gain ownership and possession of the property;
  4. The Victim consented to Defendant obtaining the property because of the Defendant’s misrepresentations;
  5. The Value of the Property was under $950

Knowingly and Intentionally Deceive

This element can be difficult for the Prosecutor to prove beyond a reasonable doubt, and is typically proven through circumstantial evidence. This element is designed to shield people who give false information through no fault of their own; if the Defendant reasonably believed that their assertions were true, they cannot be convicted of Theft by False Pretense.

False or Fraudulent Representations

A closely related element of Theft by False Pretense is that there be a false pretense. A false pretense exists when the Defendant provides information they know is not true, the Defendant makes an assertion without information that would create a reasonable belief that the information was true, the Defendant fails to give information they have a legal obligation to provide, or the Defendant makes a promise they never intended to perform on. Without a false pretense, a Defendant cannot be convicted of this crime.

Intent to Gain Ownership and possession of the Property

Like every other theft crime, theft is a “specific intent crime.” This means that the purpose of the false pretenses was to gain both ownership and possession of the property. If the Defendant simply wanted to obtain possession of the property, they may be convicted of Theft by Trick, but not Theft by False Pretense.

The Victim Relied on the Defendant’s Misrepresentations

In order to obtain a conviction for Theft by False Pretense, the Prosecution must show that the Victim truly relied on the Defendant’s false pretense, and that reliance in turn, was a key factor in the Victim transferring ownership and possession of the property to the Defendant.

In California, there are only a handful of ways of proving Theft by False Pretense: (1) the false pretense must be accompanied by a token or a false writing, (2) a memorandum of the false pretense either signed or handwritten by the Defendant, (3) the testimony of two witnesses about the false pretense; or (4) the testimony of one witness with additional evidence of the false pretense. As such, having skilled representation if you are accused of Theft by False Pretense will provide you ample opportunity to avoid a conviction for a violation of §532.

The Value of the Property is Under $950

A critical issue in theft cases is the value of the item that was stolen. For purposes of theft, the value of the item is the Fair Market Value (“FMV”) of the item. FMV, in turn, is defined one of two ways: (1) FMV is the highest value the item would reasonably be sold for in an open market during the time period, and in the location of, where the property was stolen from; or (2) FMV is a reasonable price that people would have been agreed on if neither person urgently needed to sell the stolen property.

What is Grand Theft By Trick?

The jury instructions for Theft by Trick can be found in CALCRIM 1805 In order to obtain a conviction for theft by trick, the Prosecution must prove six elements:

  1. The Defendant Obtained Property they knew was owned by someone else;
  2. The Defendant used fraud or deceit to obtain that property;
  3. The Victim consented to Defendant obtaining the property because of Defendant’s fraud or Deceit;
  4. When the Defendant obtained the property, they intended to deprive the owner of it for an extended period of time;
  5. The Defendant kept the property for any period of time; AND
  6. The Value of the Property was under $950

Property that the Defendant Knew Belonged to Somebody Else

This element is identical to that of Theft by Larceny. An important note however, is you cannot be convicted of Theft by Larceny if the property did not belong to someone else, even if you believed the property belonged to someone else. As such, this element is particularly susceptible to legal arguments relating to property law. Thus, if you believed that the property you took actually belonged to the Victim, but you were the legal owner under the law, you have not committed a theft.

The Defendant Used Fraud or Deceit to Obtain the Property

This element is very similar to the false pretense element of Theft by False Pretense. A Defendant uses fraud or deceit when the Defendant provides information they know is not true, the Defendant makes an assertion without information that would create a reasonable belief that the information was true, the Defendant fails to give information they have a legal obligation to provide, or the Defendant makes a promise they never intended to perform on. Without a false pretense, a Defendant cannot be convicted of this crime.

The Victim Consented Because of the Fraud or Deceit

Similar to Theft by False Pretense, the Prosecutor in a Theft by Trick case must prove that the victim actually was deceived based on his reliance on the Defendant’s fraud or deceit; this must be a major factor in the victim’s decision to grant the Defendant the right to possess the property.

The Defendant Intended to Deprive the Victim of that Property

Like every other theft crime mentioned in this article, Theft by Trick is a “specific intent crime”, which means at the time of the taking, the Defendant must have had the intent to permanently deprive the true owner of the property. “permanently deprive” has been held to encompass taking property in a manner that deprives the true owner of a major portion of the enjoyment or value of owning that item.

The Defendant Kept the Property For Any Period of Time

Once the other elements have been proven, the Prosecutor must show that the Defendant kept the property for any period of time. This element is designed to punish the person who completed the theft, and shield individuals who had a last minute change of heart. If the Defendant never took possession of the property, even though the Defendant had consented to it, the Defendant cannot be convicted of Theft by Trick.

A point that is necessary to reiterate is that the crime of Theft by Trick occurs when the Defendant obtains possession of property through false representations or other fraudulent representations. The crime of Theft by False Pretense occurs when the Defendant has obtained ownership and possession of the property through the use of the false pretense.

What is Grand Theft by Embezzlement?

The crime of embezzlement is set forth in California Penal Code §503. The jury instructions for Theft by Embezzlement can be found in CALCRIM 1806. This crime occurs when, because of the relationship between the Victim and Defendant, the Victim willingly gave property to the Defendant. These situations occur when someone provides the Defendant with property to keep safe[ii], or any other fiduciary relationship. Further, when the Defendant took the property, his intent at the time was to use the property for his own gain, and to deprive the true owner of the property’s value. To be convicted of grand theft by embezzlement the Prosecutor must prove four elements beyond a reasonable doubt:

  1. The Victim willingly gave the property to the Defendant based on a trusting relationship
  2. The Defendant used the property they were entrusted with for their own benefit;
  3. At the time the Defendant took the property, they intended to permanently deprive the true owner of the property.
  4. The value of the property was under $950

Example:

Vince owns a rare classic car, and wants to keep it out of sight while he is attempting to sell it. Vince gives Tom the car, and tells him to keep it hidden in his garage. When Vince delivers the car to Tom, Tom decides he wants the car for himself and decides he’ll figure out a way to keep the car. Tom moves the car to another one of the properties he owns, and reports his car stolen to the police and his insurance company. Tom can be convicted of Theft by Embezzlement. Vince gave Tom the car based on a trusting relationship, and created a bailor/bailee relationship. When Tom took the vehicle he intended to use it for his own benefit, and permanently deprive Vince of the property by reporting the car stolen. The car is likely worth more than $950, so Tom will face charges of Grand Theft by Embezzlement.

What Penalties can I face If I Am Convicted of Grand Theft?

The penalty for Grand theft is set forth in California Penal Code §489. Grand Theft is known as a “wobbler offense”, which means the Prosecutor can charge you with either a misdemeanor or a felony depending on the circumstances of the Grand theft. If you are convicted of a misdemeanor Grand theft, that is a theft where the value of the property is more than $950, you will face incarceration in county jail for a period of up to one (1) year.

If you are convicted of grand theft involving specified animals as set forth in California Penal Code §487(a), you will face up to one (1) year in county jail and/or a fine of up to five-thousand ($5,000) dollars.

If you are convicted of grand theft of a firearm, you will be charged with a felony and will face incarceration in state prison for a period ranging from sixteen (16) months, two (2) years, or three (3) years.

Grand theft can occur if the Defendant is convicted of Theft by Larceny, Theft by False Pretense, Theft by Trick, or Theft by Embezzlement. As long as there are no additional circumstances to the theft, a Grand theft will always be charged as a misdemeanor.

What Are the Legal Defenses My OCCA Attorney Can Raise if I Am Charged With Grand Theft?

If you or a loved one has been accused of Grand theft, it is important to obtain competent representation. All theft crimes are considered crimes involving “moral turpitude” and can have a significant impact on your future if you are convicted. Since this is a crime involving “moral turpitude” it can be brought into evidence in all future cases where you have been accused of a moral turpitude crime. Further, the conviction will remain on your criminal background, and is accessible by anyone who conducts a background search. This means that potential employers are able to see that you were convicted of a theft crime, which is generally a disqualifying conviction for most jobs. This is especially true if you have been convicted of a felony theft. A crime of moral turpitude can also have an impact on any licenses you currently hold, or intend to obtain in the future. If you have you have been accused of a Grand theft, it is essential that you contact Los Angeles Criminal Lawyer immediately. The sooner you contact LACL for your free consultation, the more time your attorney will have to build the strongest defense possible. Your attorney will attempt to persuade the District Attorney to dismiss the charges against you, or reduce the charges against you. If that doesn’t work, your LACL attorney will bring present a thoroughly prepared defense to the jury during your criminal jury trial. In the event that you are convicted of Grand theft, your LACL attorney will advocate for the lowest penalties available. During trial, your attorney will raise a number of defenses to your cases including:

You did not intend to commit the crime

As mentioned throughout this article, all theft crimes are known as “specific intent crimes”, which means the Prosecution must prove that you had a specific outcome in mind when you engaged in the conduct giving rise to the criminal accusations. Your LACL attorney will present evidence tending to show that you did not have the requisite intent at the time you committed the act.

The Value of the Property was under $950

A critical aspect of the crime of grand theft is that the value of the property stolen was over $950. As mentioned above, the value of the item is the Fair Market Value (“FMV”) of the item. FMV, in turn, is defined one of two ways: (1) FMV is the highest value the item would reasonably be sold for in an open market during the time period, and in the location of, where the property was stolen from; or (2) FMV is a reasonable price that people would have been agreed on if neither person urgently needed to sell the stolen property. If you are charged with grand theft, your LACL attorney will vigorously advocate for a determination that the value of the property was below $950, thereby reducing the charges to a petty theft.

If you or a loved one has been accused of Grand theft, contact Los Angeles Criminal Lawyer at 310-502-1314 immediately for a FREE consultation


i The Judicial Council of California Advisory Committee on Criminal Jury Instructions has drafted and approved jury instructions for every crime set forth in the California Penal Code (“CALCRIM”). Attorneys will frequently submit their own jury instructions, but the CALCRIM instructions provide excellent guidance as to what the Prosecution must prove in order to obtain a conviction.

[ii] This is known as a bailor/bailee relationship

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