In California, the crime of auto theft can be charged under California Penal Code Section 487(d)(1), more commonly known as Grand Theft Auto which is almost always charged as a felony. However, depending on the many circumstances unique to each case, auto theft can also be charged as a misdemeanor Unlawful Taking or Driving of a Vehicle under California Vehicle Code Section 10851.

Penal Code § 487(d)(1)n states in relevant part:

d). Grand theft is theft committed when the property taken is any of the following:

1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.

Theft under this section requires an unlawful taking of the vehicle with the intent to permanently deprive the rightful owner of possession.

Vehicle Code § 10851states in relevant part:

a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

b) If the vehicle is (1) an ambulance, (2) a distinctively marked vehicle of a law enforcement agency or fire department, taken while the vehicle is on an emergency call and this fact is known to the person driving or taking, or any person who is party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, or (3) a vehicle which has been modified for the use of a disabled veteran or any other disabled person and which displays a valid distinguishing license plate or placard and this fact is known or should reasonably have been known to the person driving or taking, or any person who is party or an accessory in the driving or unauthorized taking or stealing, the offense is a felony punishable by imprisonment in the state prison for two, three, or four years or by a fine of not more than ten thousand dollars ($10,000), or by both the fine and imprisonment.

c) In any prosecution for a violation of subdivision (a) or (b), the consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of the owner’s consent on a previous occasion to the taking or driving of the vehicle by the same or a different person.

d) The existence of any fact which makes subdivision (b) applicable shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.

e) Any person who has been convicted of one or more previous felony violations of this section, or felony grand theft of a vehicle in violation of subdivision (d) of Section 487 of the Penal Code, former subdivision (3) of Section 487 of the Penal Code, as that section read prior to being amended by Section 4 of Chapter 1125 of the Statutes of 1993, or Section 487h of the Penal Code, is punishable as set forth in Section 666.5 of the Penal Code. The existence of any fact that would bring a person under Section 666.5 of the Penal Code shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere, or by trial by the court sitting without a jury.

f) This section shall become operative on January 1, 1997.

As one can see from reading the aforementioned statutes, if an individual is charged under PC § 487(d)(1), they may also be charged under VC § 10851 as the former requires an intent to deprive and individual of the vehicle permanently while the latter makes no distinction between an intent to keep or return the vehicle. However, if an individual in unlawful possession of a vehicle intended to return the vehicle, an act commonly referred to as “joyriding”, they will not have possessed the requisite mental state necessary to be convicted under PC § 487(d)(1). Rather, they will more likely only be prosecuted under VC § 10851. Therefore, the duration of time they indented to deprive the rightful owner of possession of the vehicle at the time they took unlawful possession will likely be the deciding factor as to how the defendant will be charged with regards to these two offenses.

In order for the prosecution to successfully bring a felony charge of Grand Theft Auto (GTA) against you, they it prove beyond a reasonable doubt that you took the vehicle from the rightful owner, knowing you did not have consent to do so, with the intent to deprive them of the vehicle permanently. In order to show this intent beyond a reasonable doubt, the prosecution must show more than the fact that you were caught by law enforcement driving the vehicle. There must be some concrete evidence that you intended not to return the vehicle; such as evidence that you had already lined up a buyer to purchase that specific vehicle or that you had taken substantial steps towards chopping the vehicle to sell as spare parts. Unlawful possession alone will not be a strong enough case for the prosecution. Therefore, the sooner your attorney can contact the prosecution, the sooner they may articulate exactly how the facts of the case against you fall short of the standard of felony grand theft and have the charges reduced or dismissed.

Each of these offenses could carry severe yet substantially different penalties. As stated above, GTA is almost always charged as a felony. Generally, the crime of Grand Theft requires that the object of the theft be valued at $400 or more. An automobile is an exception to this rule. Also, the definition of an automobile under either of these sections is extremely broad and could be applied even to the theft of a golf cart from a local golf course. If one is charged under PC § 487(d)(1), the sentencing will range from 16 months to 3 years in state prison, you will receive up to 3 years of parole or formal probation, and the offense will count as a strike on your record. Sentencing will be enhanced if the car’s value is over $65,000 and then enhanced even more if it is a luxury car worth more than $200,000. If you are convicted for GTA with a strike already on your record, the maximum sentencing allowable under this section will double to 6 years in state prison.

Unlawful taking of a vehicle under VC § 10851 can also be charged as a felony carrying a maximum sentence of one year in state prison. However, it is more likely that if there are no prior criminal convictions on your record the prosecution can be persuaded to charge the offense as a misdemeanor for which one would receive only probation and whatever fines or restitution the court may see fit.

Because of the wide discrepancy in criminal punishment that comes with each of these sections, you are arrested and charged under either sections PC § 487(d)(1) and VC § 10851, it is imperative that you contact an experienced and aggressive criminal defense attorney immediately. If you are charged only under VC § 10851, it is possible that in the weeks following your arrest the prosecution could add an additional charge of GTA. The days following your arrest are a critical time for a tactful defense attorney to begin negotiations with the prosecution to either reduce the charges, dismiss the felony grand theft charge in lieu of a guilty plea to misdemeanor unlawful taking of a vehicle, or in some cases articulate the specifics of your unique situation which may result in the charges being dropped all together. It could be very evident from the facts that you sincerely believed based on representations by the owner that you had consent to use the vehicle. Even if your mistaken belief that you had a legal claim to use the vehicle was completely unreasonable under the circumstances, your attorney would still have a very good argument for the prosecution which could result all charges being dropped completely.

Whatever the facts specific to your case may be, it is imperative that you consult with an experienced and aggressive San Diego auto theft attorney so that you may consult with them on the best avenue to ensure your liberty and rights are protected. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving charges of auto theft and many times had the charges dismissed before criminal proceedings even begin. If you or a loved one has been arrested and charged with Grand Theft Auto or Unlawful Taking of a Vehicle, please feel free to contact the Law Office of Marc S. Kohnen for a free and confidential consultation about your options in this pressing issue.