Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson

These three theft crimes are distinguished by how the defendant acquired the property and what was obtained. Larceny is (1) a trespassory taking (2) and carrying away (asportation, even slight) (3) of the personal property of another (4) by someone not in possession (5) with the intent to permanently deprive, and that intent must exist at the moment of the taking. The 'continuing trespass' doctrine and the timing of intent create classic traps: if the defendant takes property intending to return it but later decides to keep it, there is no larceny unless the original taking was wrongful.

Larceny by trick occurs when the defendant obtains only possession of property through fraud or misrepresentation. Embezzlement is the fraudulent conversion of the property of another by a person already in lawful possession of it — the bank teller or trustee who lawfully holds funds and then converts them. False pretenses is obtaining title (not mere possession) to property by a knowing false representation of a material past or present fact made with intent to defraud. The pivotal question separating larceny-by-trick from false pretenses is whether the victim parted with possession only (larceny by trick) or with title (false pretenses).

California Penal Code section 484 consolidates all three into a single crime of 'theft,' so a pleading defect over which theory applies is no longer fatal — but the bar still tests the underlying elements, and you must identify them in your analysis.

Robbery is essentially larceny aggravated by two additional elements: the property must be taken from the victim's person or presence, and the taking must be accomplished by force or by intimidation (fear of imminent harm). The 'presence' element is construed broadly — property is in the victim's presence if it is within his control such that, but for the force or fear, he could have prevented the taking. The force or fear must be used either to effectuate the taking or to retain the property immediately after; pickpocketing without the victim's awareness is larceny, not robbery, because no force or fear is used.

A threat of future harm is insufficient; the threatened harm must be imminent. California PC 211 defines robbery as the felonious taking of personal property from the person or immediate presence of another, against his will, accomplished by means of force or fear, and California recognizes 'Estes robbery,' where force or fear used during the defendant's escape with shoplifted goods converts a theft into robbery. Like all theft offenses, robbery requires the specific intent to permanently deprive.

Common-law burglary is the (1) breaking (2) and entering (3) of the dwelling (4) of another (5) at nighttime (6) with the intent to commit a felony inside, and that felonious intent must exist at the moment of entry. 'Breaking' required creating or enlarging an opening by at least minimal force (opening an unlocked door counts; walking through a wide-open door does not, though constructive breaking by fraud or threat suffices).

California Penal Code section 459 dramatically broadens burglary: it abolishes the breaking requirement (mere entry suffices), eliminates the dwelling and nighttime limitations (any house, room, shop, warehouse, store, or other listed structure qualifies), and requires entry with intent to commit grand or petit larceny OR any felony. Thus in California, walking into an open store intending to shoplift is burglary.

Common-law arson is the malicious burning of the dwelling of another; 'burning' requires at least charring of the structure (mere scorching or smoke damage is insufficient), and the mental state is malice (intent or reckless disregard of a high risk of burning). California PC 451 extends arson to any structure, forest land, or property, and to one's own property when done to defraud an insurer, requiring only a willful and malicious burning.

Two further crimes and a major California reform complete the property-crime picture. Receiving stolen property (California Penal Code section 496) requires (1) property that was in fact stolen, (2) the defendant's receipt, concealment, or withholding of it, and (3) knowledge that it was stolen, with intent to deprive the owner. A thief generally cannot be convicted of both stealing and receiving the same property, because one cannot 'receive' from oneself — a recurring trap where the facts try to stack both charges.

Forgery (Penal Code section 470) is the making or altering of a writing with apparent legal significance with intent to defraud, and uttering a forged instrument is the offering of that writing as genuine; both are specific-intent crimes.

The single most important California theft reform is Proposition 47 (2014), which reclassified most theft of property valued at $950 or less as the misdemeanor of petty theft and created the new offense of 'shoplifting' (Penal Code section 459.5): entering a commercial establishment during business hours with intent to commit larceny of $950 or less is now charged as misdemeanor shoplifting rather than as felony burglary.

This is a frequent essay trap: the broad PC 459 burglary rule (entry with intent to steal) still applies, but where the target is a low-value retail theft during business hours, Proposition 47 channels the charge into shoplifting and bars the more serious burglary charge for the same act. Proposition 47 also reduced simple drug possession and receiving stolen property of $950 or less to misdemeanors and created a resentencing mechanism. Now work the classic distinctions.

Larceny by trick versus false pretenses: if a con artist persuades a victim to hand over a car for a 'test drive' (possession only) and drives off, that is larceny by trick; if the con artist's lies induce the victim to sign over the car's title, that is false pretenses, because title passed. Embezzlement versus larceny: a valet given the keys to park a car has mere custody (not possession), so driving off is larceny, but a trustee with legal control over funds who converts them has lawful possession, so the crime is embezzlement — the line turns on whether the defendant held custody or true possession.

Robbery versus larceny: snatching a purse so suddenly the victim cannot resist is usually larceny (no real force or fear), but a snatch involving a struggle, or force used to retain the goods during escape (California's Estes robbery), is robbery. Burglary timing: the felonious intent must exist at the moment of entry, so a defendant who enters lawfully and only later forms intent to steal commits theft but not common-law burglary — though California's broad statute and the law of remaining unlawfully can complicate this.

Finally, recall the merger principle does not generally apply to theft offenses the way it does to inchoate crimes: a defendant who commits burglary by entering with intent to commit larceny and then completes the larceny may be convicted of both burglary and theft, because they protect different interests.

Theft Crimes Distinguished