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Theft Defenses – California Penal Code Section 484-488

There are several ways that a theft attorney can defend you against a theft charges. Below are some of the more common defenses for theft.


General Defense’s for theft

Specific Intent

Every theft requires the defendant to have specific intent to commit the theft.  If the prosecution fails to prove that the accused had the required specific intent then he is entitled to a verdict of not guilty.


To constitute a completed theft, the property must be asported or carried away.  Asportation requires three things:

(1)    The goods are severed from the possession of the owner,
(2)    The goods are in the complete possession of the thief or thieves, AND
(3)    The property is moved, however slightly.

Therefore, if the property or item was never taken from the owner, or ever in complete possession of the defendant, or the property was never moved by the defendant, there cannot be a completed theft.

Claim of Right

If a person actually believes that he or she has a right to the property even if that belief is mistaken or unreasonable, such belief is a defense to theft.

Defendant Actually Owned Property

A defendant cannot be charged with larceny if the property was actually owned by the defendant.

Theft by False Pretense- California Penal Code Section 484

If false pretenses cannot be proven, the defendant cannot be charged with theft by false pretense.
•    It is a defense to this charge if the defendant gave information that he or she did not know was false.
•    It is a defense to this charge if the defendant had a reasonable belief of a misrepresented statement.
•    It is a defense to this charge if the defendant did not have an obligation to give information, and the defendant is accused of withholding information that he or she was obligated to give.
•    It is a defense to this charge if the defendant made a promise and intended to do what he or she promised, even if the defendant ultimately did not do what he or she promised.

Theft by Trick

Never using deceit or fraud to obtain the property or item is a defense to a charge of theft by trick. Obtaining the owner’s consent to use the property for a specified purpose while intending to use it in a different way constitutes fraud or deceit.If the owner intended to transfer ownership of the property or item, this can be used as a defense to a charge of theft by trick.

Theft by Embezzlement


If the defendant had permission to convert or use property for his or her own benefit, whether through bylaws or by anyone who has the power to grant such permission, the defendant cannot be charged with theft by embezzlement.

Alter Ego Defense

A partner can be guilty of embezzling from his own partnership. The Penal Code requires that the property be ‘of another’ for larceny, it does socnot require that the property be ‘of another’ for embezzlement.

Grand Theft Defenses

Authorization of Use

A good faith belief in acting with authorization to use the property is a defense.  The jury will consider all the facts known to the defendant at the time the defendant obtained the property, along with all other evidence in the case.  The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable.

If the property does not fall under any definition of grand theft under California Penal Code 487, any theft crime committed cannot be grand theft.  However, the defendant may still be convicted of petty theft.  Petty theft is any theft that is not grand theft.

What Things Are Not A Defense To Theft Charges?
1)    No Need to Use or Benefit From the Property Taken
It does not matter that the person taking the property does not intend to use the property or benefit from it; he or she is guilty of theft if there is intent to permanently deprive the other person of the property.

2)    The victim of a theft does not have to be the owner of property, only in possession of it.

3)    Intent to restore the property to its owner is not a defense.

If you or a loved one have been charged with petty theft in California, call Wallin and Klarich today at (877) 466-5245. We will get through this together.

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