Property Crimes

Crimes against property are generally on the less serious end of the criminal charge spectrum. Property crimes can be charged as felonies or misdemeanors, usually depending on the dollar value of the loss or the defendant’s prior criminal history. Property crime charges can sometimes be harder for the state to prove because they often require evidence of the defendant’s specific mental state. Further, with no direct damage to a person’s bodily interest, these cases are often easier to resolve for lesser convictions or even dismissals. Generally speaking (and except as noted below), even if charged as a felony, a property crime carries a maximum penalty of only three years.

Many property crimes relate to some unlawful taking of property without consent, including simple larceny (Penal Code §§ 459.5, 484, 487, 490.2, 490.5), vehicle theft or tampering (Vehicle Code §§ 10851, 10852), possession of stolen property (Penal Code § 496), possession of a stolen vehicle (Penal Code §496d), theft from an elder or dependent adult (Penal Code § 368), embezzlement (Penal Code § 503), and extortion (Penal Code §§ 518, 523). Whether any of these charges is brought as felony or misdemeanor depends on the dollar amount of the stolen property. Most notably, under Proposition 47 (passed in 2014), if the stolen property is less than $950, then a theft under Penal Code §§ 459.5, 490.2, 484, 487, and 496 must be charged as a misdemeanor.

One distinct category of theft is fraud whereby the taking of property is accomplished by some type of deceit. These fraud crimes include forgery (Penal Code §470, 473, 475), making or passing fraudulent check or document (Penal Code § 476), access card fraud (Penal Code §§ 484e, 484f, 484g), insurance fraud (Penal Code § 550), making a false financial statement (Penal Code §532a), and identity theft or fraudulent possession of identifying information (Penal Code § 530.5). Any of these crimes can be charged as either a felony or misdemeanor. Proposition 47’s $950 limit also applies to forgery under Penal Code §§ 470, 473, 475, 476, and 484e/f/g.

A related but distinct crime from theft is burglary, which is defined in California as the entering of a building, a room in a building, or vehicle with the intent to commit either a theft or a felony. Contrary to popular belief, no breaking to enter is required. In burglary, entry by itself, even with the owner’s permission, is sufficient if done with the intent to commit theft or a felony. First degree burglary involves the entry of an inhabited residence (even if the inhabitants are not home). First degree burglary is a felony strike carrying a maximum sentence of six years prison. All other burglary – involving the entry of an uninhabited building or a commercial building or a vehicle – is second degree burglary and can be charged as either a felony or a misdemeanor.

A less serious but related crime is trespass (Penal Code § 602), which is the uninvited entry into a building or onto land without any specific intent to commit any crime. Trespass is a misdemeanor unless committed by the defendant within 30 days of his making a credible threat against the property owner, in which case it can be charged as aggravated trespass (Penal Code § 601). Aggravated trespass can be filed as a felony or a misdemeanor.

Vandalism (Penal Code § 594), the destruction or injuring of property belonging to another, can be charged as a misdemeanor or as a felony if the damage is greater than $400. Vandalism is generally not a serious crime, unless it involves the burning of property, an act which can trigger more serious charges. Reckless burning can be charged based on an allegation that the defendant recklessly set fire to a building, land, or other property. Reckless burning can be charged as a felony with a three-year maximum sentence or as a misdemeanor. If, however, the reckless burning is of an inhabited building, then the maximum sentence is four years. A reckless burning causing great bodily injury (“GBI”) carries up to a six-year sentence.

Related to reckless burning is arson (Penal Code § 451-452), one of the most serious property crimes. Arson is charged based on allegations that the defendant set fire to property (either someone else’s or the defendant’s own if done with the intent to defraud or to cause injury to another person) willfully and with malice. Arson carries a prison sentence of up to three years for setting fire to property, six years for a structure or forestland, eight years for an inhabited structure, and nine years when the arson causes GBI. Arson of an inhabited structure or causing GBI is a strike (Penal Code § 667.5(c)(1).) Up to a five-year enhancement can be added if the defendant has an arson prior or used an accelerator, if a firefighter or multiple victims suffered GBI, or if multiple structures were impacted. Aggravated arson, which carries a ten to life term, can be charged if the defendant acted with the intent to injure another person or to damage property in circumstances likely to injure another person and has a prior arson conviction from the last ten years, or if the loss exceeded $7 million, or if five or more inhabited structures have been destroyed.

Property crimes often require the proof of a specific mental state held by the defendant. The prosecution cannot directly know what a particular defendant was thinking, but they can try to prove the required mental state through circumstantial evidence showing, for example, a specific intent to deprive the owner of his property. In addition to denying the required specific intent, there are numerous possible defenses to property crimes, including accident (“I didn’t mean to take that, my child must have slipped it into my bag”), mistake of fact (“I did not know it belonged to you”), necessity (“I had to take this and use it to save that person’s life”), rightful possession (“It was always mine”), or intoxication or other mental impairment (to such an extent that the defendant was unable to form the required intent). In addition, paying the victim for the loss can lead to a civil compromise dismissal (Penal Code §§ 1377-1378) or increase the likelihood of a grant of diversion (whereby prosecution is deferred to allow the defendant to complete ordered terms and conditions in return for a dismissal after a period of six months to two years).

Property crime charges, though often less serious than other types of charges, still present the possibility of adverse consequences and require an experienced attorney to ensure the best possible result. Contact me today for a free confidential consultation regarding your property crime case.

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