Shoplifting

Penal Code 495.5 of the California state law defines shoplifting as the act of entering an open store or business (which opens during regular hours) with an intention of stealing property. The stolen property must be worth $950 or less. 

Example:

Surveillance cameras capture Katy walking into a retail store, grab a pair of wedding rings, and then hide them in her backpack. Then, she just walks out of the shop without making any payment for the rings. The security team confronts her about the theft and then calls the police to arrest her. Already, there is enough evidence to charge her with petty theft. Since it can be seen clearly from the CCTV footage that she didn’t have any prior intention to steal, the best prosecutor can only charge her with shoplifting.

Proposition 47

The crime of shoplifting was created in California in the year 2014 after a voter initiative dubbed proposition 47.  Prop 47, also known as The Safe Neighborhoods and Schools Act, downgraded a variety of petty crimes (non-violent, non-serious kind) that were previously regarded as wobblers. These crimes were either charged as misdemeanors and petty felonies under Penal Code 459 PC for burglary. But thanks to the 2014 Act, these petty theft offenders are always charged with shoplifting.

Under California Penal Code PC 459.5, shoplifting is closely related to other theft crimes including petty theft and grand theft. That means, if you steal someone’s property, you can be convicted for either. So how can you be sure of the likely charges the prosecutor is going to press against you?

Petty Theft

Petty theft is a less serious criminal offense. It is often considered a misdemeanor. Under California law, you to be charged with such, you must have stolen property valued less than $950.

Examples of petty thefts include:

• Theft by trick where you obtain someone’s property by defrauding them. For example, if you change the price tag on the property you want to buy so that you can pay less than what the seller had marked.
• Theft by larceny where you physically take a property that belongs to another person.
• Theft by embezzlement; it involves stealing a property that the owner has entrusted to you.

• Shoplifting - This is also petty theft, but a little different from the others. In this case, someone has to enter a commercial establishment open during regular business hours with an intention to steal. The stolen property must be worth less than $950.

Grand Theft

Grand theft, on the other hand, is a more serious offense. Under California law, it involves stealing money or any other property that is valued more than $950. In most cases, it is considered a minor felony. It attracts a fine or a maximum of three years jail-time in federal prison.

For a prosecutor to successfully secure a conviction for a shoplifting charge, he or she must prove beyond reasonable doubt that the stolen property:

• Had a value of $950 or less
• Was not be taken or snatched directly off the victim. That would amount to mugging or robbery.
• Was not be an automobile or a gun

Again, he or she must prove that:

• You had no prior intention to take possession or conceal items offered for sale.

• You had an intention to deprive the owner of their possession of the items, without paying anything.

That means you not only have to take the goods out of the store. If you were found concealing them even within the store, then, you can be arrested and charged with shoplifting. Besides, altering price tags so that you pay a lesser amount than the real value of the goods also qualifies as shoplifting.

Shoplifting attracts various charges and penalties depending on whether you had priors or not. Here are some of the charges and respective penalties after successful convictions.

• Infractions

If you are arrested for stealing anything worth $50 or less and have no prior criminal record, your petty theft crime will be considered as an infraction. As a result, you may be required to pay up to a maximum of $250 in fines.

• Misdemeanor

Most of the cases under Penal Code 459.5 PC (shoplifting) are charged as misdemeanors in California.  The charge will be pressed against you if you were found stealing property worth $950 and below but not under $50. If you are successfully convicted of the crime, you risk spending up 6 months in county jail or/and a fine of up to $1,000.

• Property worth $950 plus

If you steal property worth over $950, you can be charged with a felony petty theft or misdemeanor depending on your criminal history.  If you are successfully convicted, you will be facing a maximum of one year in jail term and/or a fine.

• Special cases

At times, you might be charged with grand theft. That is irrespective of whether the property you have stolen is worth less than $950.  These exceptional cases happen when you have serious criminal charges in your record or you have stolen a firearm. In this case, you will be looking at a maximum of three years in state jail or a maximum of $10,000 in fines.

Some of the offenses that might subject you to more serious shoplifting consequences under Penal Code 459.5 PC include:

• Any prior sex crime that may require you to register as a sex offender.
•  If you have committed a sex crime by use of violence, force or issuing any threat of retaliation or body injury before.
• Any sex crime committed against a minor aged 14 years and below.
• If you have committed any murder or attempted to commit murder under Penal Code 187 PC.
• Committed an offense of gross vehicular manslaughter as a result of intoxication under Penal Code 191.5
• If you have committed any assault with a machine gun to a firefighter or peace officer.
• Was in possession of any weapon of mass destruction.

What makes a theft crime to qualify as shoplifting, isn’t about the value, but the intent of the person behind the crime. It doesn’t matter whether the stolen goods are under $950. If the prosecutor can prove beyond reasonable doubt that you had prior intention to steal from the store, then you will not be charged with shoplifting but with commercial burglary.

Example: Mark walks in a store and grabs a cell phone and hides it in his backpack. When he is questioned by the security, he admits that he has been visiting the store and wanted to steal a phone in there. This is the material day he had planned to execute that heist.

In this case, the prosecutor will have sufficient evidence to charge Mark with commercial burglary. What if the phones were kept inside a glass-based display case and Mark uses a tool to open the glass case? That is another way prosecutors can prove that he entered the store with the intent to steal. As a result, Mark can be charged with burglary.                

According to Penal Code 459, commercial burglary is classified as a “wobbler” offense. The prosecutor might decide to “put up felony or misdemeanor” charges depending on the circumstances of the theft and your criminal history.

• A misdemeanor burglary – attracts a jail term of up to 1 year in county jail or a fine of $1000 or both.
• Felony commercial burglary - attracts a maximum of 3 years sentence in state prison or a $10,000 fine or both.

Criminal charges of this nature are usually charged based on fact-specific determinations by the prosecutor that proves the intent and circumstances around the theft were either intentional or just a random act of theft.

Most of the times, shoplifting charges under Penal Code 459.5 are often filed against people without prior criminal records. If you are convicted, the criminal records leave a footprint that can be devastating to your personal and professional life.

But, if you don’t have a prior criminal background, you need to put up a good legal defense to help you fight the shoplifting charges. Even if you have a prior criminal record, you wouldn’t want to spend three years in jail or pay up to $10,000 in fines for a shoplifting conviction.

How can you defend yourself against shoplifting charges?

• Claim lack of intent

For a prosecutor to successfully secure a shoplifting conviction, he or she must prove that you had the intention to steal. If your intent to steal the property developed while you were in the store, you cannot be convicted for shoplifting under Penal Code PC 459.5.

• Factual innocence

Sometimes innocent people get arrested by mistake. There are also a number of people serving jail term in crimes they never committed. Showing the court, you didn’t do it, is one of the ways you can use to fight shoplifting charges under PC 459.5. You could claim that this is a case of mistaken identity. There are many look-alikes or people that share the same name as the ‘real offender’ who was reported to the police for shoplifting by the store owner. You could also argue that the store owner or the security personnel is making up shoplifting accusations against you.

This is where hiring a criminal litigator becomes very important. A good attorney that is experienced in exposing weaknesses in the prosecutor’s cases can poke holes in the evidence and secure your freedom even where the evidence appears water-tight and potentially damaging.

• Civil compromise

Sometimes, a shoplifter may admit to shoplifting and may agree to repay the owner for any losses incurred as a result of the petty theft. The business, in return, agrees not to pursue prosecution for the same offense. The losses an offender might have to pay include damaged or lost merchandise as well as the cost of preventing future theft cases.

But the California law allows these cases only in cases bordering misdemeanors. But, the prosecutor is not bound by your agreements. Even if you argue that the issue has been settled privately and the owner is not up for prosecution, the prosecutor might choose to press charges against you or drop them at his or her own discretion.

• Police misconduct

Sometimes, police might conduct themselves in unlawful ways when responding to cases of alleged shoplifting. At times, the police are not experienced to handle the job at hand or are overworked. This will result in police misconduct.

For example, the police:

• Might violate your rights with regard to the Fourth Amendment Act for performing unreasonable searches.
• Might also ‘fabricate’ or ‘plant’ evidence.
• Might coerce you into confessing the crime.

If for any reason you suspect police misconduct under Penal Code 459.5, you can file a Pitchess motion. This request, if granted, will allow you access to the information contained in the personnel file of the officer who arrested you. That way, you will be able to see whether other defendants had a similar experience with the officer in the past.  If you can prove that the officer in question often engages in police misconduct, your case can be dismissed by the prosecution or the court under Penal Code 459.5

• Trespass

Sometimes, there is a thin line between trespass (Penal Code 602 PC) and shoplifting (Penal Code 459.5 PC). Penal Code 602 PC defines trespass as entering someone’s property without their permission or without the right to do so.

Besides, for you to be charged with shoplifting, the action must happen within a business premise, during open hours and when you have a right to be there. But, there are times when prosecutors file shoplifting charges when the only thing that is completely evident is that the security personnel or employee or store owner was hostile to you and wanted you off their property.

In that case, there is a very weak evidence that points at the intent to steal. If you have an experienced attorney, he or she can negotiate a reduction in charges under Penal Code 459.5 PC to a lesser crime of trespass under Penal Code 602 PC. In most cases, a trespass is regarded as a misdemeanor. There are times though when trespass is regarded as an infraction.

Don’t make a mistake of representing yourself in a court of law. Although the California state shoplifting laws were changed last year reducing the penalties, the gravity of the charge will depend on the circumstances around the case and how the prosecutor can prove your intent to steal.

You never know, you might be expecting an “infraction” charge only for a prosecutor to surprise you with a burglary charge and goes ahead to prove it.

But, engaging an experienced criminal defense attorney can be the difference between serving a 6 months sentence in county jail. A good attorney can also have your charges expunged, or penalties reduced.

Los Angeles Criminal Lawyer Law Firm’s experienced attorneys have decades of experience and a successful record representing clients on various criminal charges. Even if there is evidence that you committed the petty crime, the charges can be contested by our attorney and thus, help you walk victoriously to your freedom.

If you live in Los Angeles, feel free to contact our law firm, today.

Call us at 310-502-1314 for your free case evaluation.