- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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There are two major types of theft:
- Theft by fraud, such as embezzlement and tax evasion.
- Theft through a physical act of force, threat of force, or by stealth.
This article covers the second type of theft. It includes crimes such as shoplifting, picking a person’s pocket, hijacking a car, robbery, and burglary.
This article will also examine some of the defenses and mitigating factors that shape how the crime is charged by the prosecutor, such as whether it will be filed as a misdemeanor or felony. The mitigating and aggravating factors surrounding the crime will also shape the court’s sentencing of the defendant.
Force, Threat of Force or Stealth
Common Law Definition of Theft
Common law theft has been traditionally defined as the unlawful taking of another person’s personal property with the specific intent to deprive the victim’s use of the property permanently.
The legal requirement of an “unlawful taking” can be demonstrated by overt force, the threat of force, or stealth.
Misdemeanor or Felony
Value of Item Stolen
Theft can be prosecuted as a misdemeanor or a felony, depending on the monetary value of the stolen items and the seriousness of the crime.
- Many jurisdictions use an amount of $500.00. Items valued at under $500.00 are prosecuted as petty theft.
- Items over $500.00 are charged as grand theft. Theft is defined as taking the property of another to deprive the owner of possession permanently.
Depending on the jurisdiction, theft is sometimes referred to as larceny.
Defenses to The Crime of Theft
Defense of Mistake
If a person browsing the aisles of a store accidentally places an item in their pocket but forgets to pay for the item, the defendant can assert the defense of the mistake.
Without intent to steal, assuming the explanation is reasonable, the prosecutor will have difficulty proving theft without a reasonable doubt, especially if the shopper purchased the other items.
Defense – Lack of Specific Intent
Another defense is the lack of intent to permanently deprive the owner of possession.
If a person takes his neighbor’s lawnmower without permission, he did not commit theft if he can prove he only intended to borrow the item to mow his lawn and intended to return it.
The Crime of Robbery
Robbery is the direct taking of property from another person by force, threat of force, intimidation, or fear.
Use of Deadly Weapon
When a deadly weapon is used in the commission of the robbery or the victim suffers injury due to the theft, the crime will almost always be charged as a felony under the penal law category of armed robbery or aggravated theft, both of which carry serious prison time.
Robbery Defined Broadly
Examples of robbery are purse snatching, carjacking, the mugger who takes a wallet or piece of jewelry, or even the kid who threatens to beat up another kid if he doesn’t hand over his lunch money.
Defenses and Mitigating Factors of Robbery
While the penalties are severe, the defense will attempt to negotiate a plea bargain with the prosecutor based on weak evidence, such as the lack of a witness or trouble identifying the stolen items.
Mitigating Defenses Include:
- Defendant Returned the Stolen Property
- Lack of Planning and Premeditation
- Limited or No Criminal History.
Defense counsel will also be able to argue mitigating factors during sentencing.
The Crime of Shoplifting
Value of Stolen Item Determines Crime
Under the crime of shoplifting, the prosecutor can charge the theft as a misdemeanor or a felony, depending on the value of the item taken.
For example, petty larceny, stealing an item worth less than a specific dollar amount, is a misdemeanor.
Over that amount, the offense is grand theft, a felony. The dollar amounts determining petty larceny or grand theft vary with time and from state to state.
Both misdemeanors and felonies may be punishable by confinement in jail or a fine.
Merchant’s Right to Detain
A store merchant or person who works for the merchant has the right to reasonably detain and investigate a person who they suspect of shoplifting.
This detainment and investigation must take place in a reasonable manner and for a reasonable amount of time. Generally, the owner or employee can only look inside the person’s bag but cannot wrestle away the bag from the person. The alleged theft had to be seen in plain view.
After the brief detainment, the store must let the person leave or call the police to conduct an investigation. The merchant cannot detain the person on the grounds you called the police and expect the person to wait.
The merchant or employee cannot act forcibly to accuse the suspect in front of other customers, nor can the merchant and must not be rude or offensive during questioning. False arrest or detainment can give rise to civil liability.
Merchant’s Right to Recover from Parent of Minor
When the shoplifter is a child, the merchant may seek civil remedies from the parent or guardian of the child in place of criminal prosecution.
The local juvenile court usually manages underage crime.
Common Law Crime of Burglary
Burglary is the unlawful entry into an enclosed structure intending to commit a felony.
If the structure being entered is a place of residence the crime is filed as a residential burglary. If the building is a commercial structure, it will be filed as a commercial burglary.
Unlike the crime of robbery, which requires the use of force or threat of force upon another to steal property, burglary is a covert crime where the victim is either asleep or not present.
Entry – Legal Significance
The crime of burglary occurs upon entry into the structure. Breaking in by force is no longer a required element of the crime.
The essential feature of burglary is the intent of the person to enter the structure. If the person intends to steal or commit any felony as he enters and does so, the crime is defined as burglary.
Completing The Crime is Not Required
The felony or theft doesn’t have to be completed, only intended to be completed when the entry was made.
Although the prosecutor may have a difficult time proving the defendant’s intent if the crime was not achieved since the necessary intent to commit the crime can be argued by a seasoned defense lawyer must be more than the original entry.
The identity of a burglary suspect is often proved using fingerprints, usually found at the point of entry or around the area where the theft occurred.
Defenses To Burglary
A common defense to burglary is that the suspect had a legitimate reason for being in the area.
Remember, it is impossible to know how long a fingerprint has been on the surface when it is lifted for forensic examination.
The suspect may have been a handyman who had worked on the house four months prior.
Another defense to burglary is lack of intent upon entry. Example – “I did not break into the house to steal. I was only looking for a place to escape the cold.”
Penalties – First-Degree Burglary
Mitigating Factors
Each state sets its specific range of penalties for crimes committed in the state. Notwithstanding, assuming there are no mitigating factors such as:
- Minimal Evidence of Planning and Premeditation
- Low Value of the Property Stolen
- Little To No Damage to Stolen Property
- No Criminal Record
- Age of Defendant
- Voluntary Return of Item Stolen
Aggravating Factors
The judge can impose the harshest sentence on the defendant, which is burglary in the first degree, if it involves aggravating factors, such as:
- Use of a Weapon
- Injury to Another
- Value of Stolen Property
- Premeditation and Planning
- Nature of Motive
- Substantial Criminal Record.
The average prison time for such a crime under aggravated circumstances ranges between five to fifteen years in state prison.
The Modern Evolution of Burglary
Over the past two decades, the legal elements of proving burglary expanded in scope and reach.
Crime is Newly Defined
To see just how much the crime of burglary has expanded, consider California’s Penal Code 459, which broadly expands the law of burglary as follows:
“[T]he entering of any commercial or residential structure or locked vehicle with the intent to commit grand theft, petty theft, or any felony offense once inside.”
No Actual Breaking Required
The common-law crime of burglary used to require an actual breaking to enter another’s dwelling with the intent to commit larceny therein.
No Forced Entry Is Required
A person may be charged with burglary even where there is no forced entry, and the intent to limit the crime to larceny is no longer required – any crime satisfies the intent requirement.
The Meaning of “Enclosed Area” Has Expanded
Almost any enclosed area qualifies under the former structure requirement, including a locked vehicle.
Consult A Criminal Defense Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Lawyer about your issues as soon as possible.
