Under California law, if you allegedly stole money or property worth no more than $950, you will typically be charged with misdemeanor Petty Theft (California Penal Code section 486; California Penal Code section 490.2).
If the money or property is worth more than that, then you’ll likely be charged with felony Grand Theft (California Penal Code section 487).
Keep in mind, though, that if you commit a series of petty thefts – i.e., each for money or property worth $950 or less – as part of a single intentional scheme against one victim, then those sums will be added together. Thus, if they collectively equal at least $951, then you’ll be charged with Grand Theft.
See People v. Bailey (1961) 55 Cal.2d 514, 518-519.
See also Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) number 1802 (“Theft: As Part of Overall Plan”).
Another exemption from petty theft being charged as a misdemeanor is known as an “Estes Robbery”, the term of which is derived from a California Court of Appeals’ decision in People v. Estes (1983) 147 Cal.App.3d 23, 28.
See also CALCRIM number 3261 (“While Committing a Felony: Defined—Escape Rule”).
Specifically, this involves you allegedly using violence or Making a Criminal Threat (California Penal Code section 422) against a store’s employee or security guard while trying to flee following a Petty Theft or Shoplifting (California Penal Code section 459.5), theft, or attempted theft.
An Estes petty theft is therefor charged as Second-Degree Robbery (California Penal Code section 211). As you can see from the example below, we’ve successfully defended this type of robbery case.
Unless you’ve previously been convicted of certain theft crimes and served a jail or prison sentence for that conviction (see below), a Petty Theft charge will typically be charged as a misdemeanor.
However, if you did serve a jail/prison term for such a conviction, and you are now facing a Petty Theft charge, the prosecutor has the power to charge you with either a misdemeanor or a felony. This type of charge is therefore known as a “Wobbler” (California Penal Code section 17(b)).
Under certain circumstances, a crime which would otherwise be charged as Petty Theft will not only always be charged as a felony, but as a Strike Offense (California Penal Code section 667(a)&(b)); California Penal Code section 667.5(c) (“Violent Felonies”).
Specifically, the following circumstances encompass “Violent-Felony” Strikes under Penal Code section 667.5(c):
In addition, an Estes robbery will also be characterized as a “Serious-Felony” Strike under the following circumstances, pursuant to California Penal Code section 1192.7(c) (“Serious Felonies”):
As you can see from one of our examples below, one of our specialties is representing Petty Theft clients on a “Pre-File” basis. This means that if you hire us while you’re being investigated and before the detective has passed the file on to the prosecutor’s office for the filing of a criminal complaint, we’ll immediately contact the detective and request that he/she allow us the opportunity to provide evidence of your innocence (or at least your lack of criminal culpability).
Sometimes we can simply work out a civil compromise, which means that you agree to pay back the money or monetary value of the subject property in lieu of the prosecutor filing charges.
But if the file has already been passed on to the prosecutor, and even if he/she has already filed charges against you, we can often convince him/her to drop the case.
Pre-File cases often involve us working with a top private investigator to gather evidence.
California Penal Code section 484(a)) (Theft in general):
In this provision, California law defines the crime of theft – whether a felony or a misdemeanor – as you committing any of the following actions:
California Penal Code section 486 (Petty Theft):
This statute explicitly divides theft into degrees of Grand Theft and Petty Theft.
See also California Penal Code section 488.
California Penal Code section 490.2 (Theft of Not More than $950):
Hereunder, Petty Theft is explicitly defined as the theft of money, property, or services with an actual or fair market value of not more than $950. This provision also explains that absent certain circumstances, this crime is charged as a misdemeanor. Penal Code section 490.2(a).
In addition, the theft of a gun is excluded from this $950 threshold, meaning that even one worth far less cannot be charged hereunder. Penal Code section 490.2(c).
California Penal Code section 666 (Petty Theft with Prior Theft Conviction):
If you’ve been convicted of any of the following crimes and went to jail/prison as a result thereof, and are now being charged with Petty Theft, then the prosecutor has the discretion of charging this latest offense as either a misdemeanor or a felony:
If you’re convicted of misdemeanor Petty Theft and this is your first theft conviction, at most you’ll receive 180 days in the county jail. Typically, however, you’ll be given informal/summary probation and a relatively small fine.
However, if you’re convicted of felony Petty Theft (see above), you may either get a jail term not exceeding 12 months or a prison term of 18, 24, or 36 months, pursuant to Penal Code section 1170(h)(1).
In addition, because theft crimes are classified as a crime of “moral turpitude”, any such conviction can prevent you from getting a professional license, could result in your deportation (if you’re not a U.S. citizen), or even prevent you from legally owning firearms, among other consequences.
As discussed above, sentencing enhancements for a Petty Theft conviction only come when it’s charged as an Estes robbery (again, a Strike offense under California Penal Code section 667(a)&(b)); California Penal Code section 667.5(c) (“Violent Felonies”), or when there’s been a prior theft conviction that involved incarceration.
See CALCRIM number 1850 (“Petty Theft with Prior Conviction — Pen. Code § 666)”).
Interestingly, this CALCRIM provision specifies that so long as you were sentenced to any length of jail or prison term for a prior theft conviction, then regardless of how much incarceration you actually served – presumably even a single day – then your current Petty Theft offense could now (though, again, not necessarily) be charged as a felony.
This is one of the reasons your attorney should do everything in his/her power to ensure you don’t actually receive a jail term for a theft crime.
This conviction entails a prison term of two, three, or five years.
According to CALCRIM, the following all serve as legitimate defenses to Petty Theft charges:
See CALCRIM number 1801 (“Grand and Petty Theft — Pen. Code §§ 486, 487-488, 490.2, 491);
CALCRIM number 1800 (“Theft by Larceny — Pen. Code § 484);
CALCRIM number 1850 (“Petty Theft with Prior Conviction”);
CALCRIM number 1863 (“Defense to Theft or Robbery: Claim of Right”).
As far as the claim of right defense, keep in mind that it only applies in a situation where you were attempting to recover a certain item during the theft that you believed belonged to you.
In other words, you’re not allowed to claim this defense if you stole the property because its owner owed you money. See People v. Tufunga (1999) 21 Cal.4th 935, 945–950.
The Notorious “Dine-and-Dash Dater” Gets Four Months in Jail for Over a Dozen Petty Thefts
Over a period of several years (from 2016 to 2018), Paul Gonzales (age 45) committed a string of dine-and-dash petty thefts from numerous restaurants throughout LA County while he was on dates with unsuspecting women.
Specifically, beginning in May 2016, Gonzales began placing ads on dating apps through which he met single women. He would then meet them at restaurants where he would feast, then slip out without the woman’s knowledge.
As a result, these series of petty thefts inspired the local media to refer to the suspect as the “Dine-and-Dash Dater”. Gonzales would also later admit to “dashing” from a beauty salon after getting his hair cut.
Gonzales was eventually arrested and charged with the following crimes:
As a result, he was facing just under 17 years of incarceration in prison and county jail if convicted of all charges. On or about Sept. 6, 2018, Gonzales entered not-guilty pleas to these charges.
However, less than seven weeks later, in consideration for dismissal of all of the felony charges, he pled nolo contendere to four misdemeanors: three counts of Defrauding an Innkeeper by Non-Payment and one count of Petty Theft (California Penal Code section 490.2).
During the same hearing, the judge gave him a sentence of four months in jail, 36 months of informal probation, six weeks of community service, restitution and location stay-away orders, and a prohibition from using certain dating apps.
Mother-and-Daughter Dognapping Duo from South Gate Plead No Content to Petty Theft
In April 2019, an elderly man (seventy-two) was strolling with his dog in Long Beach when Erika Trujillo (24) shoved him to the ground, snatched the canine, and jumped in a getaway vehicle driven by her mother, Patty Juarez (50).
It remains unclear how Long Beach PD identified them as the suspects, but the two women were eventually arrested on suspicion of the following offenses:
Elder Abuse (California Penal Code section 368)
Second-Degree Robbery (California Penal Code section 211)
Six months later, the two women accepted nolo contendere pleas to a single misdemeanor Petty Theft – an excellent disposition considering the gravity of the original charges. Indeed, they only received 36 months of informal probation, a month of community service, a location stay-away order, and mandatory counseling.
The case was investigated by the Long Beach Police Department.
“P.W.” Prosecuted for Grand Theft, Potential 36 Months’ Prison; Informal Diversion, Dismissal
People v. P.W. (Airport Courthouse — April 2016):
Beverly Hills PD had just begun investigating “P.W.” on suspicion of shoplifting more than four grand worth of merchandise from a high-end boutique at the end of Rodeo Drive. She immediately retained LADALF’s Ninaz Saffari to defend her on a Pre-File basis.
However, when Ninaz reached out to BHPD to get an update on the progress of the investigation, she was informed that not only had the matter already been sent to the District Attorney for the filing of a criminal complaint, but that BHPD was planning on arresting P.W. as soon as possible.
Fortunately, BHPD allowed Ninaz to surrender P.W., who quickly bailed out. Ninaz then reached out to the assigned Deputy DA, who had just charged P.W. with Grand Theft (California Penal Code section 487).
Ninaz provided the DDA with mitigating evidence, which included proof that P.W. had not only just graduated from a top-10 university with a Bachelor’s Degree, but had also been accepted to multiple Ivy League graduate programs. This was also her first offense, and she was willing and able to immediately repay the amount of the merchandise.
Result: The DDA gave P.W. 180 days of informal diversion, which she completed and thereby got her case dropped.
Pre-File: “Richard” Admitted to Grand Theft; 3 Yrs. Max; LADALF Negotiated No-Charge Deal
People v. R.P. (Clara Shortridge Foltz Criminal Justice Center — August 2013):
Before he hired Ninaz, “Richard” had admitted to committing Grand Theft. After he was arrested, but before he was formally charged by the DA’s Office, he hired her to defend him.
She immediately contacted the prosecutor in charge of the matter, and convinced him to hold off on filing charges until he reviewed her package of exculpatory evidence (which she quickly put together with her P.I.).
Result: After reviewing the package, the prosecutor agreed to not file charges if Richard repaid the money at issue, which he did.
Client’s Shoplifting Case becomes Second-Degree Robbery, Five Years Minimum; Diversion Only
People v. V.J. (Clara Shortridge Foltz Criminal Justice Center – January 2020):
V.J. was suspected of attempting to shoplift a six-pack of Budweiser from a downtown liquor store. Unfortunately, as he was attempting to flee, a security guard blocked his exit. V.J. then allegedly broke one of the beer bottles and threatened him with it.
As a result, instead of being charged with a misdemeanor Shoplifting (California Penal Code section 459.5), he was now being charged with an “Estes Robbery” (California Penal Code section 211).
See People v. Estes (1983) 147 Cal.App.3d 23.
This type of robbery is not only always charged as a felony, but as a Strike Offense (California Penal Code section 667(a)&(b)); (California Penal Code section 667.5 — (“Violent Felonies”).
Plus, he was also being charged with a special allegation of Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022).
All in all, then, he was facing at least five years in prison.
Result: Ninaz was able to get him Mental Health Diversion (California Penal Code section 1001.36) with no jail time. In other words, once that program was completed, all charges would be dismissed.