Types of Theft Charges

Robbery – Penal Code section 211 

Robbery is a felony, regardless of the value of the property taken.  The law of robbery was not changed by the passage of Prop 47.  Penal Code section 211 defines robbery as “the felonious taking of personal property in possession of another, from his or her person or immediate presence, and against his will, accomplished by means of force or fear.” 

The crime of robbery requires proof that:

• Defendant took property from the person or immediate presence of another;
• Defendant took the property against that person’s will;
• Defendant used either force, fear, OR intimidation to take the property; and
• When defendant took the property, he/she intended to deprive the person of the property permanently.

Robbery may be charged as first or second degree. 

First degree robberies include any of the following:

• Robbery that occurs in a residence;
• Robbery of the operator of a bus, taxicab, cable car, streetcar, trackless trolley, or other transportation vehicle for hire;
• Robbery of any passenger of a for hire vehicle described above;
• Robbery of a person who is using an ATM.

All other robberies are second degree. 

Robbery Punishment 

First degree residential robbery is punished by imprisonment in the state prison for 3, 6 or 9 years, if it is committed in concert with two or more other people. 

All other first degree robbery is punished by imprisonment for 3, 4 or 6 years. 

Second degree robbery is punished by imprisonment for two, three or five years. 

All robberies are considered violent felonies under California law and are “strike” offenses for purposes of the Three Strikes Law.

“Estes” Robbery 

The initial taking of the property does not have to be accomplished by the use of force in order to be guilty of robbery.  If a defendant takes the property of another without the use of force, but uses force or fear to resist a victim’s attempts to retake the property, then the defendant has committed robbery.  A common example of such a robbery occurs in the context of shoplifting incidents.  A shoplifter takes an item from the rack without force.  As he walks out of the store, a loss prevention officer tries to stop him.  If the defendant pushes, threatens or intimidates the law prevention officer in order to escape with the store’s property, then the defendant has committed robbery.  In such a situation the act of pushing or threatening turns a six-month misdemeanor into a five-year, violent felony.  These cases are often referred to as “Estes Robberies,” named for the case approving of this interpretation of the robbery statute.  See People v. Estes (1983) 147 Cal. App. 3d 23. 

Robbery Defenses  

Insufficient Proof of Force of Fear 

If a defendant takes property against a victim’s will, but does not use force or fear to take or escape with the property, this is theft, but not robbery.  

Deprive Permanently 

If you take an item by force, but intend to give it back at some point, you have not committed robbery. Robbery requires that the prosecutor prove that the defendant intend to deprive the victim of his or her property permanently. This defense is not viable in the context of a “stick-up” or “Estes” robbery, as the there is no reasonable argument that the property will be returned. But, there are some situations where this requirement is important.  If a husband wrestles his wife’s phone away from her in the midst of a domestic dispute, he has taken her property by force.  If he took it in a jealous fit so that he could read her text messages, but plans to return it afterward, he has not committed robbery.  

Abandonment 

The defense of abandonment sometimes arises in the context of potential “Estes” robberies. These robberies often begin with a defendant selecting an item from a store, beginning to walk out with it and then being confronted by loss prevention.  If the defendant uses force in an attempt to escape with the victim’s property, he commits robbery.  However, if the defendant drops and abandons the merchandise and then uses force or fear only to escape capture, then there is no robbery.  In order to constitute a robbery, the defendant must have the intent to deprive the victim of his property at the time of the use of force or fear.  

Burglary – Penal Code section 459 

Burglary is the entry of a building or structure with the intent to commit theft or any felony.  The prosecutor does not have to prove that a theft or felony actually occurred, but only that the defendant intended to commit either theft or a felony upon entry.  Once the defendant enters with the required intent, the burglary has occurred. 

The list of structures that are subject to the burglary statute is contained in Penal Code section 459.  The list includes houses, rooms, apartments, tenements, shops, warehouses, stores, mills, barns, stables, outhouses or other buildings, tents, vessels, floating homes, railroad cars, locked or sealed cargo containers, trailer coaches, house cars, inhabited campers, locked vehicles, aircraft and mines. 

Degrees of Burglary  

There are two degrees of burglary in California.  First degree burglary is the burglary of an inhabited dwelling – residential burglary.  All other burglary is second degree.  

Burglary Punishment 

First degree burglary is punished by two, four or six years in state prison.  Second degree burglary may be filed as a misdemeanor or felony.  If filed as a felony it carries a punishment of up to three years. 

Grand Theft – Penal Code section 487 

In 2014, California voters passed Proposition 47, which provides that unless a defendant has certain disqualifying prior convictions, all forms of theft of property worth $950 or less is considered petty theft and is a misdemeanor. 

A prior conviction for any offense listed in Penal Code section 667(e)(2)(C)(iv) or a conviction that requires sex offender registration pursuant to Penal Code section 290 disqualifies a defendant from the leniency of Proposition 47. 

If the prosecution can prove that the value of the property taken was greater than $950, then the crime is Grand Theft, punishable as either a misdemeanor or felony with a maximum term of three years. 

Auto Theft and Unlawful Driving or Taking of a Vehicle – Penal Code section 487 and Vehicle Code section 10851 

Auto theft is only a felony if the prosecution can prove that the value of the auto taken exceeds $950.  When dealing with a functioning automobile, the value is sometimes, but very rarely an issue.  

Unlawful driving or taking of a vehicle under Vehicle Code section 10851 may be filed as a felony regardless of the value of the car, except when the driving is solely related to the theft.  Proposition 47 does not cover subsequent driving of a stolen car that is unrelated to the theft and such conduct may therefore be charged as a felony without regard to the value of the car. 

Forgery – Penal Code sections 470, 470a, 470b, 471, 472, 473, 475, 476 

The crime of forgery encompasses various types of criminal conduct.  A common element to each is the defendant’s intent to defraud. A defendant commits the crime forgery if he or she does any of the following, with the intent to defraud:

• Signs the name of another person, or of a fictitious person, knowing that he or she has no authority to do so, to any of the items listed in Penal Code section 470(d)
• Counterfeits or forges the seal or handwriting of another
• Alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court
• Alters, makes, passes, utters or attempts to pass or utter any item described in Penal Code section 470(d).
• Alters, falsely makes, passes, utters or attempts to pass or utter any item described in Penal Code section 470(d)
• Possess any counterfeit, altered or forged document described in Penal Code section 470(d) with the intent to pass or utter it
• Possess any blank or unfinished check with the intent to fraudulently complete it
• Possess any completed check with the intent to fraudulently pass or utter it
• Alters or forges any book of records or return
• Forges or counterfeits a public or corporate seal
• Alters, falsifies or duplicates a driver’s license or identification cards with the intent to facilitate the commission of a forgery.
• Falsifies the acknowledgement of any notary public

The items described in Penal Code section 470(d) include  checks, bonds, bank bills, cashier’s checks, traveler’s checks, money orders, post notes, drafts, any controller’s warrant for the payment of money at the treasury, county order or warrant, request for the payment of money, receipt for money or goods, bill of exchange, promissory note, assignment of any bond, writing obligatory, contract for money or other property, due bill for payment of money or property, lottery ticket, power of attorney, vehicle or vessel ownership certificate or stock certificate. 

Forgery Punishment  

If the value of the check or document at issue does not exceed $950, forgery is a misdemeanor, unless the defendant has prior conviction that disqualifies him or her from the benefits of Proposition 47.  Otherwise, forgery is punishable as a felony with a maximum term of three years. 

A prior conviction for any offense listed in Penal Code section 667(e)(2)(C)(iv) or a conviction that requires sex offender registration pursuant to Penal Code section 290 disqualifies a defendant from the leniency of Proposition 47. 

Identity Theft – Penal Code section 530.5 

Penal Code section 530.5 criminalizes the use of the personal identifying information of another “person” without the authorization of that person for any unlawful purpose, including to obtain credit, goods, services, or medical information. 

The term “person” for purposes of this section is defined as, “a natural person, living or deceased, firm, association, organization, partnership, business trust, company, corporation, limited liability company, public entity, or other legal entity.”  See Penal Code section 530.55(a) 

“Personal identifying information” includes a person’s name, address, driver’s license number, credit card number, social security number, telephone number, health insurance identification number, taxpayer identification number, school identification number, place of employment, employee identification number, mother’s maiden name, bank account or ATM number or password, passport number, date of birth, fingerprints, retina images, and voice prints.  See Penal Code section 530.55(b). 

A first offense for violating Penal Code section 530.5 is a misdemeanor, unless the defendant is in possession of identifying information 10 or more persons.  In that case, the offense is punishable as a felony with a maximum term of three years.  A second conviction is punishable as a felony regardless of the number of victims.

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