Since the onset of the Covid-19 shutdown in March 2020, theft, burglary, and robbery crimes have significantly increased as a result of the financial devastation caused by the pandemic. For example, between mid-February 2020 and mid-February 2021, auto thefts in West LA alone spiked almost 12%.
My own practice has also seen a noticeable uptick in potential new clients calling me about their own theft and theft-related arrests, which understandably cover a wide array of offenses– from misdemeanor Petty Theft/Shoplifting (California Penal Code section 459.5) offenses with zero jail time all the way up to felony First-Degree Home-Invasion Robbery (California Penal Code section 459) and Carjacking (California Penal Code section 215) cases with special allegations that could result in 25-years-to-life in a penitentiary.
Not unlike Murder (California Penal Code section 187) charges, many theft crimes are separated by degrees. While I’ll discuss in great detail these various crimes in other articles on this website, I’ll brush some broad strokes below in regard to the same.
The first thing police do when they arrest you for a theft-related crime is try to determine the financial value of the property you allegedly stole, tried to steal, or intended to steal. Specifically, if the merchandise is worth $950 or less, then you will be charged with Petty Theft. The sole exception is if you stole a firearm, in which case you will always be charged with Grand Theft regardless of its value.
Otherwise, if the value is more than $950, then you’ll be charged with Grand Theft (California Penal Code section 487).
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1801 (“Grand and Petty Theft — Pen. Code §§ 486, 487-488, 490.2, 491″).
See also CALCRIM number 1860 (“Owner’s Opinion of Value”).
This distinction between Petty Theft, which is usually charged as a misdemeanor, and Grand Theft, which is usually charged as a felony, came about in 2014, after California voters approved Prop. 47, which itself was codified at California Penal Code section 490.2. (But it was not until two years later when voters approved Prop. 63, which included guns of any value as stolen property to be charged as Grand Theft.)
The same monetary distinction applies if you allegedly defrauded or conned someone out of their services. For example, your attorney might be able to present evidence in the form of a declaration or testimony from an expert witness which could convince the investigating detective, assigned prosecutor, the judge, or the jury that because of the fair market value of the property, you should only have been charged with Petty Theft (California Penal Code section 459.5).
Conversely, however, if you allegedly stole a series of low-value items as part of a single crime spree, the police and prosecutor could aggregate their value in order to charge you with Grand Theft.
See CALCRIM number 1802 (“Theft: As Part of Overall Plan”).
Interestingly, attacking the alleged value of the property could very well prove to be a viable defense for you if you’re charged with one of these crimes.
Burglary (California Penal Code section 460) and Robbery (California Penal Code section 211) crimes are also separated into first and second-degree offenses. For example, First-Degree Burglary (California Penal Code section 460(a)) covers residential burglaries, while Second-Degree Burglary (California Penal Code section 460(b)) covers all other types of burglaries.
Similarly, First-Degree Robbery (California Penal Code section 212.5) concerns robberies that take place in someone’s residence (and can include home invasions), while Second-Degree Robbery (California Penal Code section 211) concerns all other types of robberies.
One thing to keep in mind about burglary charges is that unlike other attempted offenses, you can still be charged with burglary even if you were unsuccessful in trying to steal something from the structure or automobile at issue.
The manner of theft can vary greatly, and can be prosecuted under the following California Penal Code sections
See, e.g., CALCRIM number 1861 (“Jury Does Not Need to Agree on Form of Theft”).
Theft crimes don’t always automatically get charged as either a misdemeanor or a felony. Sometimes the Deputy DA prosecuting your case has the discretion to decide which type of criminal charge is appropriate. As a result, this is known as a Wobbler offense (California Penal Code section 17(b)).
For example, Grand Theft (California Penal Code section 487) can be charged as either, depending on the specific (alleged) facts of your case. As a result, if you’re charged with a felony and are convicted, you’d be looking at a maximum three-year prison sentence instead of 12 months tops in a jail with a misdemeanor conviction (assuming the judge even orders jail, which he/she may very well not – particularly if this is your first offense).
Similarly, Second-Degree Commercial Burglary can be charged either way (whereas First-Degree Residential Burglary and Robbery will always be charged as a felony).
Conversely, however, if the (alleged) facts are particularly egregious, then the DA’s Office can charge you with a Strike Offense (California Penal Code section 667(a)&(b)).
Specifically, under California’s “Three Strikes law”, , certain robbery-related offenses, or even seemingly lesser theft-related crimes, can be charged thereunder. Indeed, any Robbery (California Penal Code section 211) crime will automatically get charged as a Strike since it’s classified as a “Violent Felony” under California Penal Code section 667.5(c)(9) (“Any robbery”).
Similarly, any Carjacking (California Penal Code section 215) offense will also automatically get charged as a Strike under Penal Code section 667.5(c)(17) (“Any robbery”).
Somewhat less obvious is a First-Degree Burglary charge (Penal Code section 460(a)). There, if you allegedly burglarized a residence while someone was present therein, you’ll get a Strike enhancement upon conviction. See Pen. Code section 667.5(c)(21).
In addition, if you severely harm someone or otherwise use a gun while committing any theft crime (such as pointing it at, or pistol-whipping, the victim), you’ll be charged with a Strike pursuant to Pen. Code section 667.5(c)(8).
Finally, if you are accused of having committed any theft crime under any of the following circumstances, you will also be charged with a sentencing enhancement for a “Serious Felony” Strike under California Penal Code section 1192.7(c):
As a result, if you’re convicted of one of the foregoing Strike offenses, then in addition to whatever prison sentence you’d normally be getting, the judge will tack on anywhere from an additional five years to 25-to-life on your term.
Fortunately, however, so long as George Gascón remains in office as LA County’s District Attorney, and pursuant to his highly progressive (and enlightened) social justice policies, Deputy DAs will no longer be charging the foregoing offenses as Strikes, including in pending cases.
Specifically, on December 8, 2020 (the day Mr. Gascón took office), he issued “Special Directive 20-08” (“Sentencing Enhancements/Allegations”), which confirmed this new edict. In addition, prior Strikes for theft/burglary/robbery crimes would no longer be used to increase sentences for new criminal convictions.
In addition, as part of this same Special Directive, if you had been sentenced for a theft-related Strike offense (California Penal Code section 667(a)&(b)) within four months prior to Mr. Gascón taking office, you are eligible to petition the court for resentencing.
In other words, your sentence could be greatly reduced if the court approves your petition, which would result in you being re-sentenced without the Strike enhancement. For example, one of my clients was convicted of First-Degree Residential Burglary (California Penal Code section 460(a)) within this time period and, because of a prior Strike conviction, was now sentenced to eight years in prison.
But thanks to Mr. Gascón’s new policy, I am in the process of petitioning the court to get his sentence cut in half. Assuming the court grants my petition, this means my client would be out in two years with good-time credits, instead of serving 80% of his Strike term, even with good behavior, as required by the Three Strikes Law.
Under California law, a jury cannot convict you of certain criminal offenses unless they find that you specifically intended to commit that particular crime. In regard to theft crimes, for example, you must have specifically intended to permanently deprive the owner of the subject property, or at least deprive him/her of it for such a length of time as to deny him/her of a large part of its use or enjoyment.
See People v. Avery (2002) 27 Cal.4th 49, 57-58.
In other words, for example, if you walked into a commercial business with the intent to steal something therein in excess of $950 in value, then you would be charged with Second-Degree Commercial Burglary (California Penal Code section 460(b)).
However, if you only formed that intent after you entered the business, then you would not be criminally culpable for that specific offense (though, of course, you could be charged with a lesser crime – here, most likely Grand Theft (California Penal Code section 487).
A number of other elements are specific to theft offenses. For example, if, while stealing it, you moved the subject property even a slight distance, you can be convicted. See, e.g., CALCRIM number 1600 (“Robbery — Pen. Code § 211”).
Similarly, regardless of the value of the property – even it holds only sentimental value to the owner – you can still be convicted of a theft offense. See People v. Simmons (1946) 28 Cal.2d 699, 705.
But even if the owner had no use for the property, or never planned on otherwise benefitting from its use, you would still be criminally culpable if you intended to deprive him/her of its use (again, either permanently or long enough to deprive him/her of a majority of its value or benefit). People v. Kunkin (1973) 9 Cal.3d 245, 251.
In fact, the victim doesn’t even need to actually own the property, but merely legally possess it (such as a leased car). People v. Edwards (1925) 72 Cal.App. 102, 116.
Finally, as indicated above, regardless of what theory of theft you’re being charged under, the jury doesn’t need to agree on any particular theory in order to convict you. See, e,g,:
In addition to the possibility for resentencing, if you’re currently in prison on a theft offense, you are now eligible for early parole so long as your conviction did not involve violence.
Specifically, in late December 2020, the California Supreme Court ruled that anyone convicted of, and sentenced to prison for, a non-violent felony, including for theft and theft-related offenses, would henceforth be eligible for early release.
Accordingly, so long as your theft-related conviction was not a Strike offense (California Penal Code section 667(a)&(b)) – i.e., either a “Violent Felony” (California Penal Code section 667.5) or a “Serious Felony” (California Penal Code section 1192.7l) – you can petition the judge who sentenced you for the right to appear before the parole board, which will have the ultimate say in whether you’re released early.
In other words, if you were imprisoned because of a conviction for any of the following theft-related felonies (again, assuming there were no Strike or other sentencing enhancements based on violence), then you should immediately contact your attorney to petition the court for early release:
For example, if you completed the prison term for the underlying “basic sentence” of your non-violent theft crime, but still haven’t begun or completed an additional sentence for, say, being a Felon in Possession of a Firearm (California Penal Code section 29800), Committing a Felony for the Benefit of a Street Gang (California Penal Code section 186.22), or any other non-violent sentencing enhancement, you could be going home years earlier than previously anticipated.
One of the legal services that the Los Angeles Defense Attorney Law Firm (LADALF) most excels in providing is what we call a “Pre-File”, which typically involves the client retaining us shortly after he/she learns that he/she is being investigated for a theft crime.
In other words, at that point, the assigned detective (usually from LAPD or LASD) is trying to compile enough evidence against you to arrest you and thereafter refer the matter to the DA’s Office (felonies and misdemeanors) or the City Attorney’s Office (misdemeanors only) for prosecution.
The first thing we do when we’re retained on a Pre-File basis is to immediately call the detective, introduce ourselves and our role as your attorney, and explain that we’ve been retained to find out what’s going on with the investigation. We are usually able to quickly establish a good rapport with the detective and thereby obtain valuable information about what evidence he/she has obtained so far against you.
We then usually present our version of events supporting your innocence (or at least your lack of criminal culpability), and request the opportunity to provide him/her with exculpatory evidence (that either proves your innocence or significantly weakens any chance of a successful prosecution).
A detective is virtually always willing to look at our evidence, which we often gather with the help of a private investigator. Sometimes, if you’re amenable to doing so, we’ll have you take a lie detector test with a highly respected polygrapher who has worked with local law enforcement agencies for more than four decades. If the results support your side of the story, we provide them to the detective. If they don’t, no one will ever know about those negative results.
Sometimes we use other professionals to help us with your Pre-File matter. For example, we might work with a forensic accountant to prove that you did not actually embezzle funds from your company and/or that the funds you deposited in your personal bank account were from legitimate sources.
As you can see from the example below, we have enjoyed considerable success in theft-related Pre-File cases. Sometimes the detective who reviews our exculpatory package of evidence thereafter decides not to refer the case to a prosecutor. Or if he/she has already transferred the file, the prosecutor will decline to file charges after reviewing our package.
Sometimes this happens quickly, but other times it might take a little while. For example, we have had numerous Pre-Files where after receiving our package, the detective and/or the prosecutor re-interviewed the purported victim. Then, when his/her responses failed to rebut our evidence, the matter/case was dropped.
Further, based on the good rapport we typically establish with the authorities, in the unfortunate event you are going to be arrested, the detective usually agrees in advance to allow us the professional courtesy to surrender you at the station instead of having the police break down your door at dawn, drag you out of your home in front of your neighbors, and drag you off to jail.
Finally, please note that our Pre-File fees are 100% credited against our regular legal services fee in the event you are actually charged and prosecuted.
Pre-File: Client Charged with Multiple Misdemeanor Theft Offenses – All Charges Dismissed
People v. M.C. (Airport Court – Dec. 2020): Our client “Michael” was alleged to have committed multiple theft offenses by the purported victim, his former lover. Fortunately, he hired us on a Pre-File basis, which meant that the assigned detective had not yet referred the matter to the prosecutor for the filing of formal charges.
We immediately conducted a full investigation of all the allegations, put together our exculpatory-evidence package – which included proof that his former lover had lied about her claims in order to extort money from him – and provided it to the detective (with the Los Angeles Police Department).
After reviewing our package, the detective requested that we allow him to interview Michael. After we refused – for the simple reason that we never allow our clients to be interviewed by police – he referred the matter to the prosecutor.
As a result, Michael was charged with almost half-a-dozen theft crimes. However, we quickly thereafter met with the prosecutor, went over our package with him, and thereby convinced him to dismiss the entire case.