While shoplifting is a misdemeanor offense under California Penal Code 459.5 PC, being arrested should not be taken lightly. This law makes it illegal to enter a commercial establishment intending to steal while it is open during regular business hours.
The property's value must not exceed $950 to be charged under this statute. Depending on the circumstances and the value of the merchandise taken, a shoplifting conviction could result in significant jail time and fines.
In California, shoplifting is defined under Penal Code 459.5 as entering an open business intending to steal property worth $950 or less.
This definition differentiates shoplifting from Penal Code 459 PC burglary, which involves entering a building (open or closed) with the intent to commit any felony, and from grand theft, which pertains to the theft of property valued at over $950.
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 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 a crime requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.”
Section 459.5(b) says that any act of shoplifting defined in subdivision (a) will be charged as shoplifting and that nobody charged with shoplifting can also be charged with burglary or theft of the same property.
What Are the Penalties for Shoplifting?
Standard shoplifting is classified as a misdemeanor; thus, the maximum misdemeanor penalty for a shoplifting conviction in California is up to six months in county jail, a fine of up to $1,000, or both.
However, prosecutors may have the shoplifting charges upgraded to felony shoplifting if you have one or more prior convictions for certain types of crimes. These crimes include, but are not limited to:
- Penal Code 187 PC - Murder;
- Penal Code 664/187 PC - Attempted murder;
- Penal Code 191.5 PC - Gross vehicular manslaughter;
- Most sex crimes that require sex offender registration;
- Any sex crime on a child under 14;
- Any sex crime involving force, violence, or threats; and
- Any serious or violent felony punishable by death or life imprisonment.
Additionally, suppose the value of merchandise taken exceeds $950. In that case, prosecutors may upgrade the charge from shoplifting to Penal Code 487 PC grand theft, which is a wobbler, allowing prosecutors to charge you with a felony. If you are convicted of a felony offense, you could face up to 3 years in jail and up to $10,000 in fines.
What Are the Typical Shoplifting Punishments?
Below is a list of possible results for a Penal Code 459.5 PC shoplifting conviction:
- Civil demand letter - Besides these penalties, the store's merchant where the shoplifting occurred has the right to issue a civil demand for restitution of the value of what was stolen, plus up to $500 in legal fees.
- Fines - If convicted of shoplifting, you might be required to pay a fine of up to $1,000. Most first-time convictions will result in a fine of a couple of hundred dollars, along with standard penalties and assessments.
- Diversion program - You could be offered a diversion program for shoplifting if it was the first time or the value of the stolen items was low. Under a diversion program, you will typically be required to pay a fine and restitution to the retail establishment. You must also complete community service hours and take a class. Once you successfully complete the program, the DA will dismiss the case and be removed from the system.
- Restitution – You might have to pay restitution if convicted of shoplifting. This means compensating the retail establishment for the value of the items you stole and possibly even other related expenses. Restitution usually comes after you receive a civil demand letter.
- Probation – Depending on the case details, you will most likely receive probation by the judge for a shoplifting conviction. Probation is also often granted if you have prior theft crime convictions.
- Jail time – While not common, the law says you could receive up to one year in the county jail for a shoplifting conviction. However, if the value of the stolen items exceeded $950 and you were charged with Penal Code 666 petty theft with a prior, then jail time is more likely.
What Are Other Possible Outcomes for Shoplifting Arrests?
In addition to defending against direct charges, other alternatives can help you avoid criminal charges altogether. These outcomes are far more likely if you are a first-time offender or you are proactive in your willingness to "right the wrong" yourself. These outcomes are discussed below.
A "Civil Compromise" with the Vendor
A civil compromise is a direct agreement between you and the merchant in which you agree to return the merchandise or repay the merchant for the value of the merchandise plus any additional cost for losses.
In return, the merchant agrees not to press charges, and prosecutors and the courts honor this agreement. The procedure mandates an official agreement between both parties and often requires approval from the court. You may sidestep acquiring a criminal record by reimbursing the vendor for their loss.
Informal Diversion Program
As a participant in an informal diversion program, you will plead guilty to shoplifting, but you will be given certain conditions to meet in exchange for dismissing the charges.
These requirements range from attending educational classes to performing community service or making restitution payments. Successfully fulfilling these requirements not only helps you avoid jail time but a criminal record, as well.
What Are the Related Crimes?
Several California crimes are related to Penal Code 459.5 PC shoplifting, such as the following:
- Penal Code 484 PC – petty theft;
- Penal Code 666 PC – petty theft with a prior;
- Penal Code 496 PC – receiving stolen property;
- Penal Code 487 PC – grand theft;
- Penal Code 211 PC – robbery;
- Penal Code 459 PC – burglary;
- Penal Code 602 PC – trespassing.
What are the Common Defense Strategies for PC 459.5 Shoplifting?
Fortunately, a skilled California criminal defense attorney will be able to employ numerous strategies to defend you if the alleged shoplifting turns into criminal charges, as discussed below:
- Challenging Intent: A shoplifting conviction requires prosecutors to show you intended to steal when you entered the business. Your attorney may argue that you had no such intent—for example, you accidentally forgot to pay for the merchandise, or the decision to steal was spur-of-the-moment, known as "after-entry intent," which may result in reduced penalties.
- Mistake of Fact: Your attorney may argue that you accidentally picked up the merchandise. For example, perhaps an item of clothing looked like one you already had in your possession, and you mistook it for your own. Or maybe you dropped the contents of your purse and accidentally picked up merchandise while picking up your stuff.
- Questioning the Value of the Property: If you can demonstrate that the value of the alleged stolen property was less than $950, you can avoid having the charge upgraded to a felony.
- Invoking the Fourth Amendment: If the evidence was obtained through an illegal search and seizure, your attorney might argue for it to be dismissed based on Fourth Amendment rights.
- Plea for Alternative Sentencing: If you're a first-time offender, your attorney might argue for alternative sentencing options like probation, community service, or theft education programs instead of jail time.
Another strategy is a prefiling intervention where we can negotiate with law enforcement and the prosecutor to avoid the formal filing of criminal charges.
With the help of a skilled criminal defense attorney, other, more favorable outcomes may be available for a shoplifting arrest. Contact us for a case review. Eisner Gorin LLP has offices in Los Angeles, California.
- Alternatives to Formal Prosecution in Los Angeles
- Merchant's Privilege and the Right to Detain
- When Does a Theft Crime Become a Felony in California?
- Alternative Sentencing in California
- CALCRIM No. 1703. Shoplifting (Pen. Code 459.5)
- Penal Code 490.4 PC – Organized Retail Theft