Can I be charged with theft for not returning a rental car or rented equipment?

Yes. Keeping a rental past its return date can lead to a theft or embezzlement charge, but California uses different presumption rules for vehicles and for other rented property. For a vehicle, the presumption arises if you willfully and intentionally fail to return it within 5 days after the rental agreement expires, with no written demand required; for rented equipment and other property, it generally requires a written demand from the owner first. Neither presumption is an automatic conviction.

Rental vehicles: Vehicle Code section 10855

Vehicle Code section 10855, in its current form since January 1, 2024, provides that a person who “willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired” is presumed to have embezzled it. Unlike the rule for other rented property below, it does not require the rental company to send you a written demand before the presumption can apply. The failure to return also has to be willful and intentional, not caused by something outside your control.

Other rented property: Penal Code section 484(b) through (e)

Equipment, tools, and other personal property rented under a written contract fall under Penal Code section 484, whose rental rule begins “Except as provided in Section 10855 of the Vehicle Code.” A rebuttable presumption that you intended to commit theft by fraud arises only if the owner makes a written demand for the property’s return by certified or registered mail after the rental agreement expires, and you then fail to return it within 10 days for property worth more than $1,000 that is not a commonly used household item, or within 20 days for property worth $1,000 or less or a commonly used household item. The owner has to make that written demand within 30 days after the agreement expires; if the owner does not, “the presumption created by subdivision (b) shall not apply.” A demand mailed to the address you gave when you signed the agreement and to any other address the owner knows counts as proper demand, and the statute does not require proof that you received it, so it is worth confirming what address is on file.

One exception removes the written-demand requirement. If, with criminal intent, you presented identification bearing a false or fictitious name or address to get the rental, the presumption applies as soon as the rental period ends without a return, and no written demand is required.

A presumption is not a conviction

Section 484(d) makes the rented-property presumptions ones “affecting the burden of producing evidence.” Under Evidence Code section 604, that kind of presumption applies only until evidence is introduced that would support a finding that the presumed fact is untrue; the fact is then decided from the evidence without the presumption, though ordinary inferences can still be drawn. Section 10855 does not say what kind of presumption it creates.

In a criminal jury trial there is a further limit. In People v. Roder (1983) 33 Cal.3d 491, a case about a presumption in the receiving stolen property statute, the California Supreme Court held that telling jurors they had to presume an element of the crime unless the evidence raised a reasonable doubt was unconstitutional, and that the statutory presumption could be given only as a permissive inference, one jurors may accept or reject. Applied here, a missed return deadline is evidence the prosecution can use, not a finding of guilt, and Penal Code section 1096 still places the burden of proving guilt beyond a reasonable doubt on the prosecution.

The underlying charge still has to be proved. Section 10855 is framed as embezzlement, and CALCRIM No. 1806, the embezzlement instruction, requires proof that you fraudulently converted or used entrusted property for your own benefit, intending to deprive the owner of it or its use. The instruction treats conduct as fraudulent when it takes unfair advantage of the owner, or causes the owner a loss, through a breach of duty, trust, or confidence. When the evidence supports it, jurors are also told that an honest belief that you had permission to keep using the property is a defense.

How this differs from joyriding

Vehicle Code section 10851, the joyriding statute, is a separate offense: driving or taking a vehicle without the owner’s consent, with intent to deprive the owner of title or possession, even temporarily. The rental presumption in section 10855 starts from a different place, a vehicle you had permission to use under a rental agreement. Because section 10851 covers driving as well as taking, whether it could also apply after a rental has ended depends on the facts about consent and any extension.

What matters if you are late returning a rental

• For a vehicle: how many days have passed since the agreement expired, and whether the delay was willful and intentional or caused by something outside your control.
• For other property: whether the owner actually sent a written demand by certified or registered mail, when, and to which addresses.
• Whether you gave accurate identification and address information when you signed the rental agreement.
• Any communication with the rental company about an extension, a dispute over damage or charges, or a delay, since an honest belief that the company allowed you to keep the property longer can be a defense to embezzlement.
• Returning the vehicle or item as soon as you can, and keeping proof of the return. Under Penal Code section 512, an intent to restore embezzled property is no defense or mitigation if the property was not restored before charges were filed.

These rules sit alongside California’s general theft law, including the petty and grand theft categories covered on petty theft. If a rental company or prosecutor is treating a late return as theft or embezzlement, get the rental agreement, the timeline, and any demand notice reviewed before you respond. Law Offices of David S. Chesley is available at (800) 755-5174.