Petty Theft/Shoplifting

Petty Theft (PC 484) & Shoplifting (PC 459.5)

There are many forms of theft under California law. Theft, in the simplest form, is the unlawful taking of someone else’s property. When the property is valued under $950, the crime is considered petty theft under Penal Code 484. The separate offense of shoplifting, defined as Penal Code 495.5, is when a person enters a commercial establishment with the intent to steal store items worth less than $950.

Penalties (PC 484/459.5):

Penal Code(s) 484 or 459.5 are treated as misdemeanors. For first-timers, the usual punishment is up to six months in county jail and/or fines up to $1,000. In many cases, you may also be barred from ever entering the commercial establishment where you committed the crime.

Legal Defenses (PC 484/459.5):

Our criminal defense attorneys can use several defenses to get your charges reduced or dismissed. Maybe you did not intend to steal or shoplift the item, or you may claim that the item actually belonged to you. The most important element that must be proven is that you intended to steal. Without intent to steal, prosecutors will not have a strong case to convict you.

Legal Definitions:

484. (a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who shall
fraudulently appropriate property which has been entrusted to him or
her, or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property, or who causes or procures
others to report falsely of his or her wealth or mercantile character
and by thus imposing upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or property or
obtains the labor or service of another, is guilty of theft. In
determining the value of the property obtained, for the purposes of
this section, the reasonable and fair market value shall be the test,
and in determining the value of services received the contract price
shall be the test. If there be no contract price, the reasonable and
going wage for the service rendered shall govern. For the purposes
of this section, any false or fraudulent representation or pretense
made shall be treated as continuing, so as to cover any money,
property or service received as a result thereof, and the complaint,
information or indictment may charge that the crime was committed on
any date during the particular period in question. The hiring of any
additional employee or employees without advising each of them of
every labor claim due and unpaid and every judgment that the employer
has been unable to meet shall be prima facie evidence of intent to
defraud.
(b) (1) Except as provided in Section 10855 of the Vehicle Code,
where a person has leased or rented the personal property of another
person pursuant to a written contract, and that property has a value
greater than one thousand dollars ($1,000) and is not a commonly used
household item, intent to commit theft by fraud shall be rebuttably
presumed if the person fails to return the personal property to its
owner within 10 days after the owner has made written demand by
certified or registered mail following the expiration of the lease or
rental agreement for return of the property so leased or rented.
(2) Except as provided in Section 10855 of the Vehicle Code, where
a person has leased or rented the personal property of another
person pursuant to a written contract, and where the property has a
value no greater than one thousand dollars ($1,000), or where the
property is a commonly used household item, intent to commit theft by
fraud shall be rebuttably presumed if the person fails to return the
personal property to its owner within 20 days after the owner has
made written demand by certified or registered mail following the
expiration of the lease or rental agreement for return of the
property so leased or rented.
(c) Notwithstanding the provisions of subdivision (b), if one
presents with criminal intent identification which bears a false or
fictitious name or address for the purpose of obtaining the lease or
rental of the personal property of another, the presumption created
herein shall apply upon the failure of the lessee to return the
rental property at the expiration of the lease or rental agreement,
and no written demand for the return of the leased or rented property
shall be required.
(d) The presumptions created by subdivisions (b) and (c) are
presumptions affecting the burden of producing evidence.
(e) Within 30 days after the lease or rental agreement has
expired, the owner shall make written demand for return of the
property so leased or rented. Notice addressed and mailed to the
lessee or renter at the address given at the time of the making of
the lease or rental agreement and to any other known address shall
constitute proper demand. Where the owner fails to make such written
demand the presumption created by subdivision (b) shall not apply.

484.1. (a) Any person who knowingly gives false information or
provides false verification as to the person’s true identity or as to
the person’s ownership interest in property or the person’s
authority to sell property in order to receive money or other
valuable consideration from a pawnbroker or secondhand dealer and who
receives money or other valuable consideration from the pawnbroker
or secondhand dealer is guilty of theft.
(b) Upon conviction of the offense described in subdivision (a),
the court may require, in addition to any sentence or fine imposed,
that the defendant make restitution to the pawnbroker or secondhand
dealer in an amount not exceeding the actual losses sustained
pursuant to the provisions of subdivision (c) of Section 13967 of the
Government Code, as operative on or before September 28, 1994, if
the defendant is denied probation, or Section 1203.04, as operative
on or before August 2, 1995, if the defendant is granted probation or
Section 1202.4.
(c) Upon the setting of a court hearing date for sentencing of any
person convicted under this section, the probation officer, if one
is assigned, shall notify the pawnbroker or secondhand dealer or coin
dealer of the time and place of the hearing.

484b. Any person who receives money for the purpose of obtaining or
paying for services, labor, materials or equipment and willfully
fails to apply such money for such purpose by either willfully
failing to complete the improvements for which funds were provided or
willfully failing to pay for services, labor, materials or equipment
provided incident to such construction, and wrongfully diverts the
funds to a use other than that for which the funds were received,
shall be guilty of a public offense and shall be punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
a county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by both that fine and that
imprisonment if the amount diverted is in excess of two thousand
three hundred fifty dollars ($2,350). If the amount diverted is less
than or equal to two thousand three hundred fifty dollars ($2,350),
the person shall be guilty of a misdemeanor.

484c. Any person who submits a false voucher to obtain construction
loan funds and does not use the funds for the purpose for which the
claim was submitted is guilty of embezzlement.

484d. As used in this section and Sections 484e to 484j, inclusive:
(1) “Cardholder” means any person to whom an access card is issued
or any person who has agreed with the card issuer to pay obligations
arising from the issuance of an access card to another person.
(2) “Access card” means any card, plate, code, account number, or
other means of account access that can be used, alone or in
conjunction with another access card, to obtain money, goods,
services, or any other thing of value, or that can be used to
initiate a transfer of funds, other than a transfer originated solely
by a paper instrument.
(3) “Expired access card” means an access card which shows on its
face it has elapsed.
(4) “Card issuer” means any person who issues an access card or
the agent of that person with respect to that card.
(5) “Retailer” means every person who is authorized by an issuer
to furnish money, goods, services, or anything else of value upon
presentation of an access card by a cardholder.
(6) An access card is “incomplete” if part of the matter other
than the signature of the cardholder which an issuer requires to
appear on the access card before it can be used by a cardholder has
not been stamped, embossed, imprinted, or written on it.
(7) “Revoked access card” means an access card which is no longer
authorized for use by the issuer, that authorization having been
suspended or terminated and written notice thereof having been given
to the cardholder.
(8) “Counterfeit access card” means any access card that is
counterfeit, fictitious, altered, or forged, or any false
representation or depiction of an access card or a component thereof.
(9) “Traffic” means to transfer or otherwise dispose of property
to another, or to obtain control of property with intent to transfer
or dispose of it to another.
(10) “Card making equipment” means any equipment, machine, plate,
mechanism, impression, or other device designed, used, or intended to
be used to produce an access card.

484e. (a) Every person who, with intent to defraud, sells,
transfers, or conveys, an access card, without the cardholder’s or
issuer’s consent, is guilty of grand theft.
(b) Every person, other than the issuer, who within any
consecutive 12-month period, acquires access cards issued in the
names of four or more persons which he or she has reason to know were
taken or retained under circumstances which constitute a violation
of subdivision (a), (c), or (d) is guilty of grand theft.
(c) Every person who, with the intent to defraud, acquires or
retains possession of an access card without the cardholder’s or
issuer’s consent, with intent to use, sell, or transfer it to a
person other than the cardholder or issuer is guilty of petty theft.
(d) Every person who acquires or retains possession of access card
account information with respect to an access card validly issued to
another person, without the cardholder’s or issuer’s consent, with
the intent to use it fraudulently, is guilty of grand theft.

484f. (a) Every person who, with the intent to defraud, designs,
makes, alters, or embosses a counterfeit access card or utters or
otherwise attempts to use a counterfeit access card is guilty of
forgery.
(b) A person other than the cardholder or a person authorized by
him or her who, with the intent to defraud, signs the name of another
or of a fictitious person to an access card, sales slip, sales
draft, or instrument for the payment of money which evidences an
access card transaction, is guilty of forgery.

484g. Every person who, with the intent to defraud, (a) uses, for
the purpose of obtaining money, goods, services, or anything else of
value, an access card or access card account information that has
been altered, obtained, or retained in violation of Section 484e or
484f, or an access card which he or she knows is forged, expired, or
revoked, or (b) obtains money, goods, services, or anything else of
value by representing without the consent of the cardholder that he
or she is the holder of an access card and the card has not in fact
been issued, is guilty of theft. If the value of all money, goods,
services, and other things of value obtained in violation of this
section exceeds nine hundred fifty dollars ($950) in any consecutive
six-month period, then the same shall constitute grand theft.

484h. Every retailer or other person who, with intent to defraud:
(a) Furnishes money, goods, services or anything else of value
upon presentation of an access card obtained or retained in violation
of Section 484e or an access card which he or she knows is a
counterfeit access card or is forged, expired, or revoked, and who
receives any payment therefor, is guilty of theft. If the payment
received by the retailer or other person for all money, goods,
services, and other things of value furnished in violation of this
section exceeds nine hundred fifty dollars ($950) in any consecutive
six-month period, then the same shall constitute grand theft.
(b) Presents for payment a sales slip or other evidence of an
access card transaction, and receives payment therefor, without
furnishing in the transaction money, goods, services, or anything
else of value that is equal in value to the amount of the sales slip
or other evidence of an access card transaction, is guilty of theft.
If the difference between the value of all money, goods, services,
and anything else of value actually furnished and the payment or
payments received by the retailer or other person therefor upon
presentation of a sales slip or other evidence of an access card
transaction exceeds nine hundred fifty dollars ($950) in any
consecutive six-month period, then the same shall constitute grand
theft.

484i. (a) Every person who possesses an incomplete access card,
with intent to complete it without the consent of the issuer, is
guilty of a misdemeanor.
(b) Every person who, with the intent to defraud, makes, alters,
varies, changes, or modifies access card account information on any
part of an access card, including information encoded in a magnetic
stripe or other medium on the access card not directly readable by
the human eye, or who authorizes or consents to alteration, variance,
change, or modification of access card account information by
another, in a manner that causes transactions initiated by that
access card to be charged or billed to a person other than the
cardholder to whom the access card was issued, is guilty of forgery.
(c) Every person who designs, makes, possesses, or traffics in
card making equipment or incomplete access cards with the intent that
the equipment or cards be used to make counterfeit access cards, is
punishable by imprisonment in a county jail for not more than one
year, or by imprisonment pursuant to subdivision (h) of Section 1170.

484j. Any person who publishes the number or code of an existing,
canceled, revoked, expired or nonexistent access card, personal
identification number, computer password, access code, debit card
number, bank account number, or the numbering or coding which is
employed in the issuance of access cards, with the intent that it be
used or with knowledge or reason to believe that it will be used to
avoid the payment of any lawful charge, or with intent to defraud or
aid another in defrauding, is guilty of a misdemeanor. As used in
this section, “publishes” means the communication of information to
any one or more persons, either orally, in person or by telephone,
radio or television, or on a computer network or computer bulletin
board, or in a writing of any kind, including without limitation a
letter or memorandum, circular or handbill, newspaper or magazine
article, or book.

May 5, 2015May 7, 2015

False Imprisonment

False Imprisonment (PC 236):

In order to be guilty of False Imprisonment in the state of California, the prosecutor must show that two factors were present, the defendant intentionally restrained another person or confined another person by violence and/or threats of violence, and, the defendant made the other person stay in a confined place or made the victim go somewhere, against his/her consent and/or without legal justification.

Penalties (PC 236):

False Imprisonment can be charged as a felony or a misdemeanor under Penal Code 236. If charged with a misdemeanor, the defendant can expect to serve up to 1 year in county jail. If charged with a felony, the defendant can expect to serve up to 3 years in California State Prison. However, in addition to the jail terms, there are other severe consequences in being charged with false imprisonment. For example, there are fines, immigration consequences, employment loss, civil lawsuits, increased insurance rates, mandatory rehabilitation classes, restraining orders and more.

Two closely related crimes to False Imprisonment include: Penal Code 237 PC, False Imprisonment with violence- it is considered a felony or misdemeanor with a maximum sentence of 3 years. Penal Code 210.5 PC, False Imprisonment of a hostage- it is considered a felony, with a maximum of 8 years.

Legal Defenses (PC 236):

There are many defenses to the crime of false imprisonment depending on the circumstances of each case. It is very possible to reduce false imprisonment charges to a less severe charge or to reduce the amount of jail time associated with the charge.

May 5, 2015May 7, 2015

Lewd Acts with a Child/Child Molestation

Lewd Acts with a Child/Child Molestation (PC 288):

Child Molestation is a serious charge that carries serious legal and social consequences. An accusation of this nature can ruin an innocent person’s life. While there are many types of child molestation, almost any conviction will result in having to register as a sex offender for life. The charge under Penal Code 288 PC makes it illegal to touch a child under the age of 14 with sexual intent. Even “touching” a child through clothing is a crime under this section. According to the law, a child under 14 cannot consent, therefore making a consensual defense in implausible under this section.

When these acts are committed against a child 16 or 17 years old, it is no longer considered child molestation; it will be prosecuted as statutory rape or sexual battery. However, both charges require the accused to be subject to the lifetime sex offender registration.

Penalties (PC 288):

Perhaps the most severe consequence of being convicted under this statute is that a PC 288 conviction triggers a lifetime duty to register as a sex offender. Any conviction under PC 288 will result in this mandatory requirement.

If convicted of lewd acts upon a child under the age of 14, the offense is considered a felony with a sentence of 3 to 8 years in a California State Prison. If any force was used on the child involved, you could face anywhere between 5 to 10 years in a California State Prison. When the act(s) are committed against a child age 14 or 15, and the accused is at least 10 years older than the child, then you could face anywhere from 1 to 3 years in county jail.

Legal Defenses (PC 288):

Common defenses to a PC 288 charge include (but are not limited to): the accuser is mistaken or fabricated the truth, the contact was accidental, and that were was no intent to cause sexual arousal. We have also found in some cases there is a third party involved, in which the third party “coaches” the child into making a false allegation of sexual conduct.

May 5, 2015May 7, 2015

Expungements

Once you have completed summary probation, you can apply to have your initial charges “dismissed in the interest of justice.” Having a conviction(s) expunged can be very beneficial for those involved, especially since an expunged conviction would not be reported on Criminal Records Background Checks in California. If you successfully complete the terms of your probation- you and your criminal defense attorney can clean up your Rap Sheet in the state of California.

In the United States, criminal records may be expunged, though laws vary by state. Many types of offenses may be expunged, ranging from parking fines to felonies. In general, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.

However, when applying for a state professional license or job that is considered a public office or high security (such as security guard, law enforcement, or related to national security), you must confess that you have an expunged conviction or else be denied clearance by the DOJ. There is no post-conviction relief available in the federal system, other than a presidential pardon.^[2]

Congressman Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to “[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense”.

Permissibility

Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.

Requirements often include one or more of the following:

Fulfilling a waiting period between the incident and expungement;
Having no intervening incidents;
Having no more than a specified number of prior incidents;
That the conviction be of a nature not considered to be too serious;
That all terms of the sentence be completely fulfilled;
That no proceedings be pending;
That the incident was disposed without a conviction; and
That the petitioner complete probation without any incidents.

Types of convictions that are often not eligible for expungement include:^[3]

Murder
Felonies and first degree misdemeanors in which the victim is under 18 years of age
Rape
Sexual battery
Corruption of a minor
Sexual imposition
Obscenity or pornography involving a minor
Serious weapons charges

In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.

Most jurisdictions have laws which allow – or possibly even require – the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are “sealed.” The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, “delinquent acts,” to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a “clean slate,” shielding him or her from the negative effects of having a criminal record.

Petition for Expungement

California‘s expungement law permits someone convicted of a crime to file a Petition for Dismissal^[4] with the court to re-open the case, set aside the plea, and dismiss the case.^[5] In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime.^[5] If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so.^[5] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.^[5] The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime.^[5] What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.

Certificate of Rehabilitation

For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR).^[6] The CR does not remove or expunge anything negative from the individual’s record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored.^[7] and a request for apardon is automatically sent to the governor.^[8]

Sealing juvenile records

Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday.^[9]