In California, shoplifting refers to entering a business premise with the intention to steal merchandise valued at $950 or less. With one of the biggest metropolitan cities in the world, Los Angeles is not new to shoplifting and other theft cases. This is why the LA Criminal Defense Attorney has dedicated lawyers who can help you if you are charged with shoplifting and other theft-related crimes.
California’s Laws on Shoplifting
Your actions will typically constitute theft if you steal, take, carry or drive away another person's personal belongings with an aim to permanently deny the owner of their property. California’s Penal Code 459.5 specifically defines shoplifting as entering into an open commercial establishment during regular operating hours with a goal to steal property valued at $950 or lower. Examples of business establishments include motels or hotels, restaurants, theatres, retail stores, and gyms or fitness clubs.
Shoplifting is a form of petty theft where you enter an open retail business with an aim to steal merchandise that is not worth more than $950. Whether you are a junior stealing candy bars for fun or a senior citizen who is a compulsive shoplifter, it is illegal under Penal Code 459.5. Even if you do not succeed in leaving the premises with the stolen property, you will still be charged with shoplifting. The intention to execute the crime is the most critical element for you to be sentenced.
You can also face charges of shoplifting if you plan, try to or take goods from a retail outlet without making payments for them. If your conduct indicates an intention to steal such as concealing stolen items under your clothing, it constitutes shoplifting if the things are worth $950 or less. Additionally, if you enter a bank or other business establishment with intent to commit petty theft in a sophisticated way such as a forged check whose value is not more than $950, you will face charges of shoplifting under Penal Code 459.5. Any amount above $950 is considered grand theft. The value of the items is determined by the price tag which is an indicator of their fair and reasonable market value.
If you accompany a suspected shoplifter and act as a lookout, or as a distractor to the business employees, you can be charged with shoplifting even if you did not steal the goods. If you interchange or modify the price tag of an item and then attempt to buy that item at the revised price, or take merchandise and leave, you will be arrested and charged with shoplifting. You will be detained regardless of whether you were aware of the stolen goods or not, or if you purchased some of the products and omitted to pay for others. Other forms of shoplifting include when you secretly remove an item from the store and return it later for a refund, or collect a receipt from the trash, go into the store and pick a matching piece then try to obtain a refund for the item.
Shoplifting only occurs when a commercial establishment is open for business. All other forms of entry to business premises with an intention to steal are considered burglaries. California’s Penal Code 459 defines burglary as entering a commercial or residential room or building with a purpose to commit petty theft, grand theft or a California felony. Based on the legal definitions of shoplifting and burglary, shoplifting is a subcategory of robbery. The only difference is that for shoplifting, you enter into an open business and with an intention to commit petty theft.
If you are a shoplifting suspect, the business owner, manager or employee has the right to detain you for probable cause before or after you leave the store. The person also has a right to demand that you return the stolen property. Besides, they are within their rights to ban you from the premises for a specific length of time, or to proceed with having you arrested and prosecuted.
Penalties for Shoplifting
Shoplifting, just like any other type of theft, has its civil and criminal consequences. It can be a significant offense depending on your previous criminal record regarding theft and how much the stolen property is worth.
Before 2014, shoplifting was always a wobbler. A wobbler is a case where the prosecution has the discretion to charge you with either a felony or a misdemeanor depending on the specific circumstances and facts of the occurrence. In November 2014, California passed Proposition 47 also known as the "Safe Neighborhoods and Schools Act" which added shoplifting as a specific crime to Penal Code 459. Before Prop 47 was enacted, shoplifting in California was charged under burglary law, and you could potentially be incarcerated for minor offenses. Penal Code 459.5 explicitly states that if you commit the crime of shoplifting as it is outlined in that code, you can only face charges of shoplifting and not burglary.
After the enactment, shoplifting became a misdemeanor in California. If you are a first offender, the maximum sentence is a six months jail term or not more than $1,000 in fines. If you are convicted of shoplifting, you are more likely to serve between one to three years of informal probation even if you are a juvenile offender or a teen, and pay penalty assessments.
Prosecutors and judges may opt to offer you diversion programs such as educational programs, community service, and other alternatives instead of more severe sentences. The diversion programs allow your charges to be dismissed if you do not commit any new offenses. Often, the prosecution will decline charges if you are accused of shoplifting food or other necessities with a value not exceeding $50.
Moreover, you can reach a civil compromise with the business where you pay restitution in exchange for your charges being declined or dismissed. In some instances, your first shoplifting offense will be reduced to an infraction which means you will not have a criminal record. You may also agree to a plea bargain where you enter a guilty plea for a misdemeanor, and in return, your charges and penalties are reduced. The type of punishment varies depending on your previous criminal record and the circumstances of your case.
It is quite rare for you to receive a jail term for your first shoplifting conviction. However, if you have previous convictions of serious crimes, your shoplifting crime will be charged as a felony. Such crimes include forcible sex crimes, a sexual offense against a child aged below fourteen years and crimes that require you to register in the sex offenders' database. Other offenses include attempted, solicited or actual murder, gross vehicular manslaughter under the influence, assaulting a firefighter or peace officer with a machine gun, possessing a weapon capable of mass destruction and any violent or severe felony punishable by death or life imprisonment.
If your shoplifting incident is charged as a felony, the penalties include formal probation, sixteen months to three years in prison and a maximum fine of $10,000. If you are a non-citizen convicted of shoplifting, you could be deported or excluded from admission in the country. Additionally, California laws on shoplifting permit civil charges if the business chooses to sue you. If found liable, you may have to pay damages between fifty to five hundred dollars, or the value of the goods, if they were lost or damaged and the business cannot resell them.
Your charges of shoplifting can be reduced or dismissed though several different plea bargains. If it is your first shoplifting offense and you do not have a previous criminal conviction, your charges can be discharged through diversion or a deferred entry of judgment (DEJ). Though the terms of punishment may be different across different courts, your accusations may be dismissed, and your record left clean if you comply with all the conditions set by the court.
Pleading to a lesser offense such as trespassing or disturbing the peace is a way of avoiding a theft conviction and the resulting long term consequences. You can also petition the court to expunge your shoplifting conviction after you complete your probation or after it is terminated. However, if you opt for jail time as a way to secure a final sentence, you will only be eligible for expunction after one year from the date of your conviction.
What Next If You are Accused of Shoplifting?
If suspected of shoplifting, you will most likely be detained and questioned by the business employees before law enforcement officers arrive. The most critical thing to do under such circumstances is to understand your rights and obligations based on California law. There are necessary actions that you can take to protect these rights.
It is prudent to remain calm and avoid communication with anybody before consulting your attorney. These include law enforcement officers, store personnel, friends and family. Do not offer any apologies to prevention officers or offer to pay if they set you free. When police officers arrive, inform them of your intention to remain silent until you speak to your lawyer. You have a right to legal representation before your arrest.
Since shoplifting is a serious charge, the police and loss prevention officers will question you with the aim of establishing if you intended to steal before you entered the store. If you admit to it, you will have provided factual evidence that could be used against you. Additionally, consenting to a search may be interpreted as an admission of guilt. Do not do or say anything until your legal representative arrives.
What Prosecution Must Prove
There are three main elements of the crime of shoplifting under Penal Code 459.5 that prosecution must prove to sustain charges of shoplifting against you. First, you must have entered a commercial establishment. A retail establishment is a business engaging in sales and operating for profit. California’s statute on shoplifting specifically states that shoplifting only occurs in business establishments.
Second, you must have entered when that establishment is open for business during regular operating hours. You cannot be charged with shoplifting if you steal from a retail outlet that is not open for business. For such theft, you should be charged under a different statute.
Third, you must have entered with intent to steal goods valued at a maximum of $950. The most significant element of shoplifting is entering any business with a deliberate plan to steal. Therefore, you cannot be accused of shoplifting if you came into the commercial establishment with no intention to steal, but later decided to take an item when you were inside. Furthermore, you are only guilty of shoplifting if the stolen goods are not worth more than $950. The prosecutor must also prove that you intentionally attempted to leave the premises without paying for the products.
Possible Defenses to Fight Shoplifting Charges
There are several legal defenses that you can present to fight against your charges of shoplifting.
Since intent is the most critical element in your shoplifting case, you cannot be found guilty of shoplifting if you had no objective to steal. Additionally, based on the legal definition of shoplifting, the intent to unlawfully take property must be present before you enter the business. If you developed the plan after you got inside, you are not guilty of shoplifting. Moreover, if you can prove that you unintentionally left the business premises with an item that you forgot to pay for, then there was no intent, and the prosecutor may dismiss your charges.
Often, innocent people are mistakenly arrested for shoplifting. You could be apprehended due to mistaken identity or if a malicious business owner or employee falsely accuses you of shoplifting. A mistaken arrest could also happen if you are accused of stealing an item that you had already purchased. If you are detained in such a situation, you could plead factual innocence.
If you are arrested for shoplifting, you could enter into a civil compromise with the business owner where you repay any losses resulting from the incident. In exchange, the business will not pursue your prosecution. Such repayments include lost or damaged goods and restitution for loss of prevention. In California, civil compromise can only be applied in misdemeanor cases, and the prosecutor is not obligated to abide by the terms of the settlement. Even if you agree with the affected business that they will not seek prosecution, the prosecutor does not necessarily have to dismiss or decline the charges.
Police officers called to make arrests for shoplifting are often overworked, inexperienced and may have some form of racial bias against specific groups of suspects. Therefore, they often engage in misconduct such as violating your right against unfair and inappropriate searches, fabricating evidence or coercing you to confess. If you suspect police misconduct in your case, you can file a pitchess motion to allow you to establish whether there are past similar complaints against the officer. If the officer is found guilty of police misconduct, the judge or prosecutor may dismiss your shoplifting charges.
You cannot be charged with shoplifting if law enforcement officers entrap you. Entrapment is when government agents or law enforcement officers encourage you to commit a crime even when you express your unwillingness to participate. It would be a legal defense if government agents initiated your criminal act and not you.
Often, evidence of your shoplifting charges will be provided through video footage, security, and loss prevention staff, and other witnesses. If such witnesses are too few, your case becomes factually too weak to secure a conviction and your charges can either be reduced to trespass or entirely dismissed. You can also prove that not all the requisite elements of the misdemeanor have been met, and that evidence submitted against you is insubstantial or insufficient.
Is Shoplifting a Similar Crime to Petty Theft?
In California, shoplifting and petty theft are two different crimes. Shoplifting is entering open business premises, within regular business hours with an intention to steal property valued at a maximum of $950. Petty theft is unlawfully taking services or property from another person as long as the service or item is worth not more than $950. Simply put, shoplifting is planned petty theft executed in a business premise that is open to the public.
The main difference between the two is that shoplifting occurs in a commercial establishment open to the public while petty theft can happen anywhere. Additionally, to be liable for shoplifting, you must have planned the act before entering the premises.
Despite the similarities in their definition and in how the cases are prosecuted, shoplifting and petty theft are outlined in separate legal statutes in the California Penal Code. However, under Penal Code 459.5, even if you successfully take away stolen property from a retail outlet, you cannot be charged with both shoplifting and petty theft for the same action.
Other Offenses Related to Shoplifting
In California, shoplifting is closely related to petty theft. The crime of petty theft is established under California Penal Code 484. You will be charged with petty theft if you steal another person’s property worth not more than $950. Depending on the kind of theft and your record, your petty theft may be charged as a misdemeanor or a felony. There are different forms of petty theft. They include theft by larceny, theft by trick, theft by embezzlement and theft by pretense or fraud. Each type of petty theft has its unique elements that prosecution must prove to sustain your charges of petty theft.
For the first petty theft offense, you will receive a fine of not more than $400, informal probation for one to three years, and community service. Under California Code 491, your first offense can also be reduced to an infraction. For the second or third petty theft offense, you will be charged with either misdemeanor or felony petty theft under California Penal Code 490. The penalties include more substantial fines, one year in jail to sixteen months in state prison, and restitution.
Another offense similar to shoplifting and petty theft is grand theft. You will face grand theft charges under California Penal Code 487 if you unlawfully take another person’s property or money worth more than $950 or if you take it directly off the owner’s person. Grand theft includes extortion, fraud, identity theft, embezzlement, and auto theft.
Penalties for grand theft include fines not exceeding $10,000, not more than sixteen months in state prison, community service, parole, probation, counseling, and restitution. If your grand theft involved a firearm, you might serve a prison sentence of up to three years. Essentially, grand theft is the other side of petty theft. Both include similar conduct with the only difference being the monetary value of the stolen items. The determining figure is $950.
Under PENAL Code 602, you may be charged with trespass if you enter someone’s property without the right or permission to do so. There is often a distinction between shoplifting and trespass. Shoplifting happens during regular business operating hours when you probably have a right to be there. Sometimes, you can be arrested for shoplifting if the business owner or employee wants you off the property. If evidence about your intent to steal is weak, your charges can be reduced to trespass. Ordinarily, an intrusion is a misdemeanor but can also be an infraction.
Often, your crime may not fit within the precise definition of shoplifting as indicated in Penal Code Section 459.5. It may, therefore, be classified as burglary under Section 459 of the California Penal Code. In California, it is an act of robbery if you enter a locked vehicle, building or home with an intention to commit petty theft or a felony. You will be charged with entering a building if you forcefully go through the building’s outer boundary with an object or your body. Even if you do not commit any felony or steal anything, the court will consider your intent when handling your burglary case.
If you enter a hotel room, a home or any other residence, you will face felony charges for first degree or residential burglary. The penalties include six years in prison and $10,000 in fines. If you forcefully gain entry into a business building, you will answer to charges of the second degree or commercial burglary. The offense may either be treated as a misdemeanor or a felony depending on the specific circumstances. Penalties may vary from one year in jail to three years in prison.
The value of the stolen items, your criminal record and the context determine whether your crime is a felony, a misdemeanor or an infraction.