Shoplifting is one of the most common forms of theft in California. Under Penal Code 459.5 PC, shoplifting is a distinct offense separate from general theft or burglary.
Defending California shoplifting charges requires challenging factors such as a lack of intent (no plan to steal), mistaken identity, insufficient evidence (such as grainy videos or unreliable witnesses), or proving that the search or seizure was illegal.
Legal options include diversion programs for first-time offenders, civil compromises, proving coercion, or asserting rightful ownership.
These often require an attorney to negotiate outcomes and suppress unlawfully obtained evidence. Staying calm and knowing your rights are crucial first steps.
If you have been accused of shoplifting, you are likely facing up to 6 months in jail if convicted (and possibly longer prison time if you have prior offenses and the D.A. charges you with a felony).
However, a skilled California criminal defense attorney can often employ a variety of defense strategies to obtain an acquittal or have the charges dismissed.
What Are the Provisions of Penal Code 459.5 PC?
PC 459.5 says, "(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).
Any other entry into a commercial establishment with the intent to commit larceny is burglary.
Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170."
Understanding PC 459.5
As noted, under PC 459.5, shoplifting is defined as entering a commercial establishment with the intent to commit larceny.
In contrast, that establishment is open during regular business hours, provided the value of the property taken or intended to be taken does not exceed $950. (If the value exceeds $950, it is charged as grand theft.)
This statute distinguishes shoplifting from burglary. Before Proposition 47, entering a store with the intent to steal could be charged as burglary, a much more serious offense.
Now, if the criteria of PC 459.5 are met, the offense must be charged as shoplifting, which is generally a misdemeanor. For a prosecutor to secure a conviction for shoplifting, they must prove the following elements:
- Entry: You entered a commercial establishment.
- Timing: The entry occurred while the establishment was open during regular business hours.
- Intent: You entered with the specific intent to commit larceny (theft).
- Value: The value of the property taken or intended to be taken was $950 or less.
Common Defense Strategies
A skilled criminal defense attorney will evaluate the specific facts of the arrest to determine the most viable defense strategy. Here are seven common approaches used to combat shoplifting charges in California.
1. Lack of Intent
Shoplifting is a specific intent crime. This means that taking an item alone is not enough for a conviction; you must have intended to steal it.
A defense attorney may argue that the incident was a result of distraction or absentmindedness rather than criminal intent.
For example, if you walked out of a store with an item in your hand while distracted by a phone call or a child, you did not possess the specific intent required by law to commit a crime.
2. After-Entry Intent
Under the legal definition for shoplifting, you must have had the specific intent to steal before entering the commercial establishment.
If it can be shown that you did not form the intent to steal until after you were already inside the store, the conduct does not meet the statutory definition of shoplifting.
Demonstrating that there was no intent to commit theft upon entry can prompt the prosecution to amend or reduce the charge to the lesser offense of petty theft, potentially resulting in less severe penalties.
3. Mistake of Fact
The mistake of fact defense applies if you genuinely believed you had permission to take the item or thought you had already paid for it.
For instance, if you believed a companion had paid for the merchandise, or if you thought the item was a free sample or promotional giveaway, you operated under a mistake of fact. This negates the criminal intent necessary for a shoplifting conviction.
4. Claim of Right
A "claim of right" defense asserts that you believed the property legally belonged to you. If you take an item because you honestly believe you have a legal right to it-even if that belief is mistaken-you have not committed theft.
This defense challenges the fundamental requirement that theft involves taking the property of another person.
5. Constitutional Violations: Illegal Search and Seizure
The Fourth Amendment protects citizens from unreasonable searches and seizures.
If police or private security acting as agents of the police searched without probable cause or a warrant, any evidence obtained from that search might be inadmissible in court.
If a judge suppresses the stolen merchandise as evidence because it was found illegally, the prosecution's case often collapses.
7. Civil Compromise
In some California jurisdictions, a civil compromise may serve as a potential resolution to shoplifting charges.
This approach involves the accused compensating the alleged victim-typically the retailer-for any losses or damages related to the incident.
If the store owner acknowledges that restitution has been made in full and agrees to it, the court may dismiss the criminal charge in the interest of justice. Where applicable, this strategy can spare the accused a criminal record while making the victim whole.
8. Pre-Trial Diversion
Pre-trial diversion programs are available in some California jurisdictions for individuals accused of low-level offenses such as shoplifting.
These programs allow eligible defendants to complete certain requirements, such as community service, theft education classes, or restitution, in exchange for the dismissal of criminal charges upon successful completion.
Participation in a pre-trial diversion program can help first-time offenders avoid a formal conviction and its lasting consequences. Enrollment is subject to court approval and may require the prosecution's recommendation.
Still, when available, diversion offers an opportunity to resolve the case constructively while minimizing the impact on the accused's record. For more information or a case evaluation, contact the criminal defense law firm at Eisner Gorin LLP.
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