Let's review under what circumstances shoplifting can be charged as a felony crime. In California, under Penal Code 459.5 PC, shoplifting is defined as entering a commercial establishment with the intent to steal items valued at $950 or less during business hours.

Typically, shoplifting is charged as a misdemeanor. However, if you're facing shoplifting charges, the presence of certain factors can significantly heighten the severity of the offense under California law, escalating it to a felony. If this happens, you could be facing several years in prison if you're convicted, a consequence that should not be taken lightly.

PC 459.5 shoplifting can be filed as a felony when it's a third-time theft offense or other prior convictions.

Under Proposition 36, a third-time theft offense can be a felony punishable by 16 months, 2 years, or 3 years of incarceration. The prior two convictions do not matter if they were for petty theft, shoplifting, burglary, robbery, or carjacking.

As noted, shoplifting is a typical misdemeanor. However, the decision to file felony shoplifting charges instead can be made by the D.A. when you have been previously convicted of either gross vehicular manslaughter (PC 191.5), murder, attempted murder, or solicitation under PC 187. This discretion can add an element of uncertainty to your situation.

Other previous convictions for felony shoplifting charges include a sex crime requiring sex offender registration, any sex offense on a child under 14 years old, any sex offense committed through force, violence, or threats, and any serious felony or violent felony punishable by life in prison or death.

Other scenarios that could lead to felony shoplifting charges include organized retail theft, which is when two or more people act together to steal merchandise.

Another is grand theft, which may apply if the stolen property is worth more than $950 or if the offender has a serious criminal record, which includes prior convictions for violent or serious felonies, sex crimes, or other offenses that indicate a pattern of criminal behavior.

What Constitutes Shoplifting?

California Penal Code 459.5 PC 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 an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."

Simply put, shoplifting, as defined by California law, involves knowingly entering a commercial establishment during business hours with the intention of committing larceny. This is distinct from burglary, which entails entering the business after business hours or when the business is vacant. Understanding these legal definitions can make you feel more informed about your situation.

The threshold value of the items stolen (or intended to be stolen) must be $950 or less for it to be considered misdemeanor shoplifting.

Note that under the law, the intent to steal is just as prosecutable as the actual act of stealing. This means that you can be charged with shoplifting if you had the intention to steal the items, even if you were caught before you could leave the store. The law looks at your intent, not just your actions.

When Can Shoplifting Escalate to a Felony Offense?

California law effectively permits the charge of shoplifting to be a felony when any of the following circumstances apply.

The Value of Stolen Goods Exceeds $950

The value threshold of $950 differentiates petty theft, often tied to misdemeanor shoplifting, from grand theft, which is legally considered grand theft under California law.

For example, if a person enters a store and steals electronics, jewelry, or other items valued at more than $950, the crime is no longer classified as shoplifting under Penal Code 459.5. Instead, it becomes grand theft, which can carry harsher penalties, including felony charges.

Grand theft is defined under Penal Code 487 and can result in up to three years in county jail if charged as a felony. Again, the intent to steal property valued over $950 elevates the offense. Even if the individual does not successfully leave the store with the items, the value of the goods plays a deciding role in the charges they may face.

When Two or More People Conspire to Shoplift (Organized Retail Theft)

Shoplifting can also be charged as a felony under Penal Code 490.4, which addresses organized retail theft. This applies when two or more individuals work together to steal merchandise for financial gain.

The goal in such cases is typically to resell, exchange, or return the stolen goods for money. Organized retail theft is considered more serious than an individual shoplifting offense because it reflects premeditation and collaboration.

For instance, if two people enter a store, gather valuable merchandise, and coordinate their actions to avoid suspicion or detection by employees, they may face felony charges if caught.

Prior Criminal Convictions

If you have a criminal history involving certain prior convictions at the time of the alleged shoplifting, you may also face felony charges under PC 459.5. These prior convictions typically involve serious or violent felonies or sex crimes. Examples include (but are not limited to):

• Any offense requiring registration as a sex offender (PC 290).
• Sex crimes against a minor under age 14.
• Any crime categorized as a "violent sex crime" (i.e., involving force, weapons, or threats).
• Murder (PC 187).
• Solicitation to commit murder (PC 653f).
• Gross vehicular manslaughter (PC 191.5.
• Possession of a weapon of mass destruction; and
• Any other felony punishable by death or by life imprisonment.

What are Related Crimes?

• Burglary (Penal Code 459 PC). Entering any structure, room, or locked vehicle with intent to commit a theft or felony once inside. You will likely be charged with burglary than shoplifting if you enter the shopping establishment after business hours.
• Grand theft (Penal Code 487 PC). Stealing someone's property worth more than $950. It does not matter whether the property is in a store. This felony carries up to three years in prison and a fine of up to $10,000.
• Petty theft (Penal Code 484 PC). Stealing somebody's property or services worth $950 or less. You will likely be charged with petty theft than shoplifting if the prosecutor can't prove you had an intent to steal when you entered the store.
• Trespassing (Penal Code 602 PC). Entering or remaining on someone's property without permission or without a right to do so. If you are accused of trying to steal from a store after business hours, you could face both trespass and burglary charges.

Legal Representation and Defenses

While shoplifting might seem like a minor offense on the surface, California law allows for numerous circumstances under which shoplifting could escalate to a felony offense, potentially resulting in penalties such as:

• Fines up to $10,000.
• Up to 3 years in state prison.
• Victim restitution.
• Forfeiture of the right to possess firearms.

Considering that prosecutors are often eager to identify reasons to charge shoplifting as a felony, hiring a skilled California criminal defense attorney offers your best hope of fighting the charges and/or minimizing the penalties. A good attorney can review your case and create an effective defense strategy tailored to your unique circumstances. Defense strategies may include, but are not limited to:

• Challenging the value of the stolen goods (especially if near the $950 threshold).
• Seeking the suppression of any evidence obtained unlawfully (e.g., through illegal search and seizure).
• Arguing lack of intent (e.g., you walked out of the store with the merchandise accidentally, or someone stuffed the merchandise into your bag).
• Negotiating plea agreements when appropriate (for example, having you plead guilty to a misdemeanor so prosecutors don't escalate it to a felony).

For more information, contact our California criminal defense law firm, Eisner Gorin LLP, based in Los Angeles.

Related Content:

• California Penal Code 459.5 PC
• California Penal Code 490.4 PC
• CALCRIM No. 1703. Shoplifting
• California Assembly Bill 331
• California Assembly Bill No. 1065
• People v. Root 245 Cal.App.4th 353