Criminal Law

1802. Theft: As Part of Overall Plan

If you conclude that the defendant committed more than one theft, you must then decide if the defendant committed multiple petty thefts or a single grand theft. To prove that the defendant is guilty of a single grand theft, the People must prove that:

1. The defendant committed theft of property from the same owner or possessor on more than one occasion;

2. The combined value of the property was over ($400/$100);


3. The defendant obtained the property as part of a single, overall plan or objective.

If you conclude that the People have failed to prove grand theft, any multiple thefts you have found proven are petty thefts.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on aggregating the value of the property or services taken if grand theft is charged on that theory.

The total value of the property taken usually must exceed $400 to be grand theft. (See Pen. Code, § 487(a).) For some types of property, however, the property taken need only exceed $100 in value to constitute grand theft. (See, e.g., Pen. Code, § 487(b)(1) [farm products] & (2) [commercially grown fish, shellfish, or aquacultural products]; see also CALCRIM No. 1801, Theft: Degrees.) In element 2, select the appropriate value depending on what type of property was taken.


Aggregating Value of Property Taken According to Overall Plan or General Intent. People v. Bailey (1961) 55 Cal.2d 514, 518-519 [11 Cal.Rptr. 543, 360 P.2d 39].

Grand Theft of Property or Services. Pen. Code, § 487(a) [property or services exceeding $400 in value].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 11, 12.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01[1][i] (Matthew Bender).

Related Issues

Multiple Victims

Where multiple victims are involved, there is disagreement about applying the Bailey doctrine and cumulating the charges even if a single plan or intent is demonstrated. (See People v. Brooks (1985) 166 Cal.App.3d 24, 30 [210 Cal.Rptr. 90] [auctioneer stole proceeds from property belonging to several people during a single auction; conviction for multiple counts of theft was error]; People v. Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33 [163 Cal.Rptr. 455] [series of petty thefts from numerous victims occurring over 10-month period properly consolidated into single grand theft conviction where defendant employed same scheme to defraud victims of money]; but see People v. Garcia (1990) 224 Cal.App.3d 297, 307-309 [273 Cal.Rptr. 666] [defendant filed fraudulent bonds at different times involving different victims; multiple convictions proper]; In re David D. (1997) 52 Cal.App.4th 304, 309 [60 Cal.Rptr.2d 552] [stating that Garcia "articulately criticized" Brooks and Columbia Research; declined to apply Bailey to multiple acts of vandalism].)

Combining Grand Thefts

The Bailey doctrine can be asserted by the defendant to combine multiple grand thefts committed as part of an overall scheme into a single offense. (See People v. Brooks (1985) 166 Cal.App.3d 24, 31 [210 Cal.Rptr. 90] [multiple grand thefts from single auction fund]; People v. Gardner (1979) 90 Cal.App.3d 42, 47-48 [153 Cal.Rptr. 160] [multiple grand theft of hog carcasses]; People v. Richardson (1978) 83 Cal.App.3d 853, 866 [148 Cal.Rptr. 120] [multiple attempted grand thefts], disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8 [156 Cal.Rptr. 871, 597 P.2d 130]; see also People v. Sullivan (1978) 80 Cal.App.3d 16, 19 [145 Cal.Rptr. 313] [error to refuse defense instruction about aggregating thefts].)

Theft Enhancement

If there are multiple charges of theft, whether grand or petty theft, the aggregate loss exceeds any of the statutory minimums in Penal Code section 12022.6(a), and the thefts arise from a common scheme or plan, an additional prison term may be imposed. (Pen. Code, § 12022.6(b).) If the aggregate loss exceeds statutory amounts ranging from $50,000 to $2.5 million, an additional term of one to four years may be imposed. (Pen. Code, § 12022.6(a)(1)-(4); see People v. Daniel (1983) 145 Cal.App.3d 168, 174-175 [193 Cal.Rptr. 277] [no error in refusing to give unanimity instruction].)

(New January 2006)