Posted on December 28, 2015

Penal Code § 459.5 Shoplifting Laws & Defenses & Punishment

With California’s passing of Proposition 47, the crime of “Shoplifting” was created under Penal Code § 459.5, which makes it a crime to enter a commercial establishment harboring the intentions of committing a theft crime valued at $950 or less. Moreover, regardless of whether you actually completed the crime by leaving the store with merchandise or it was a failed attempt, either instance permits the government to charge you with shoplifting. Shoplifting is a misdemeanor offense but carries severe consequences in the event you’re not a U.S. Citizen or you’re attempting to gain or maintain state licensing. The following article will address several important things you should know about shoplifting charges.

1. Elements to Shoplifting PC § 459.5 Charges

1. You entered a store (commercial) during regular business hours;

2. When you entered, you harbored the intent to commit a theft worth $950 or less.

2. Shoplifting Charge Eligibility

If any of the following points are applied to your case, then you will not be charged with shoplifting. Instead, the government will allege charges of commercial burglary and/or grand theft.

• The value of the property / item(s) exceeds $950;

• You have were previously convicted of a “super-strike” offense;

• You are a registered sex offender;

• You did not enter the store during normal business hours.

3. Demand Letter

After your arrest or citation for shoplifting, one normally receives a demand letter from the store’s designated law firm demanding a certain restitution amount from $100 to $500, and failure to pay the demanded amount may subject you to civil suit. If you’ve received one of these letters, contact Shoplifting Defense Lawyer John Rogers at the Law Offices of John D. Rogers.

4. Defenses to Shoplifting

• You did not intend to commit a theft crime

• You formulated the intent to commit a theft crime until after you entered the store

• You were given permission to take the item(s) without paying

• Your Fourth Amendment rights were violated by the police

• Your incriminating states were illegally obtained by police in violation of your Miranda rights

5. Punishment & Sentencing

A conviction for shoplifting carries up to 6 months in the county jail and a fine amount not to exceed $1,000. The court will usually suspend execution of jail time and place you on a period of probation for 3 years.

If this was your first offense, you may be eligible for “diversion” also known as alternative sentencing. California has enacted its own diversion statute under Penal Code § 1000, but some counties may offer better pilot diversion programs. Simply put, if eligible for diversion, you enter a plea of guilty, and the court puts over sentencing for a period of 12 to 18 months. Because you’re not sentenced, you avoid being “convicted.” The court will require you to complete community service or theft counseling as a condition of diversion. Upon completion of your obligations, and after the 12 or 18 months period, the judge will dismiss the case. Failure to complete your obligations will result in you being formally sentenced and thus convicted of a crime.

6. Shoplifting Expungement

If you’re subsequently convicted of shoplifting, then you may be eligible to expunge your conviction pursuant to California PC § 1203.4. To obtain this remedy, you must be fully completed with your probation period prior to filing your expungement petition. If the judge grants your petition, the court will withdraw its finding of guilty, enter a not guilty plea, and dismiss the case under the expungement statute. Although this remedy carries considerable benefits in the private employment sector, it however will not relieve you from having to disclose the conviction on any job application in the public employment sector or state licensing applications.

7. Free Confidential Consultation

If you’ve charged, arrested, or cited for shoplifting under PC § 459.5, then contact Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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