Posted on February 15, 2016

“Shoplifting” │ California Penal Code 459.5 PC

In California, the crime of “Shoplifting” is charged under Penal Code 459.5(a) which makes it an offense to enter a commercial establishment during regular hours with the specific purpose of committing a theft crime worth $950 or less, regardless if you actually completed the theft. In other words, the attempt of committing a theft crime will suffice to charge you with this offense.

Previously, if you entered a store with the intent to commit a theft crime, you’d be charged with commercial burglary. This however changed with California’s enactment of Proposition 47. Simply put, you will be charged with shoplifting if:

• You were not previously convicted of a “super-strike” offense;
• You’re not a 290 registrant;
• The crime was committed during business hours; and
• The value of the item(s) does not exceed $950.
Furthermore, you cannot be charged with burglary and theft of the same property.

If you’ve been cited or arrested for shoplifting, normally you receive a letter from a law firm demanding that you to pay a restitution amount or you could be sued. If you received this letter, contact a Shoplifting Defense Lawyer to discuss your legal options. The following article will address 8 important things you should know about the crime of shoplifting and the defenses.

1. What is the Legal Definition of Shoplifting?

Shoplifting is formally defined under PC 459.5(a) which states, “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.”

2. What Must the Prosecutor Prove for Shoplifting?

In order for you to be found guilty of shoplifting under PC 459.5, the government must prove each of the following elements beyond a reasonable doubt:

1. You entered a commercial structure (or establishment) during regular business hours;

2. You harbored the intent to commit a theft valued $950 or less prior to entry.

3. What is the Punishment for Shoplifting?

With the exception of alternative sentencing for first-time offenders, the punishment for shoplifting is up to 6 months in the county jail, a fine not exceeding $1,000, and the court will also impose probation. As a condition of probation, you will be ordered to pay the cost of any damages, and a “stay away” order will be imposed.

4. Am I Eligible for Alternative Sentencing / Diversion?

Diversion occurs when you enter a plea of guilty or no-contest and the court stays execution of your sentence for a period of 12 to 18 months. In other words, the judge will suspend the “conviction” and require you to complete obligations which would normally occur if you were formally sentenced. Obligations include community service and/or theft counseling. If you successfully complete your ordered obligations, your plea of no-contest or guilty will be withdrawn and the case will be dismissed. In the event you do not fully complete the diversion requirements, the court will sentence you hence “formally convicting you” of shoplifting.

Diversion is generally offered to those who committed a first time offense. However, you are not always precluded from diversion if you suffer from a prior theft conviction. Normally, if you suffer from a prior conviction, your attorney will negotiate with the prosecutor as to your candidacy for diversion even though you suffer from a previous conviction or you were granted diversion in a previous case.

Unfortunately, even if you successfully completed diversion and the court does not recognize you to be “convicted” of a crime, you must still report the offense to any California State Licensing Board, disclose it on any application for public office, or application for employment in the public sector.

5. What are the Legal Defenses to Shoplifting?

• You did not harbor the requisite intent to commit a theft prior to your entry into the store. Instead, you formulated the intent to steal once you were inside. In most instances, the government proves your state of mind prior to entry based on your incriminating statements give to police once you’ve been detained or arrested.

• You innocently forgot to pay for the item you’re accused of stealing. Perhaps you placed an item into a bag and forgot to pay for it.

• The business consented for you to take them item without paying. This could occur if you were exchanging an item you previously purchased under the direction of the business.

• The police illegally searched or seized you in violation of your Fourth Amendment right under the U.S. Constitution.

• Your incriminating statements were illegal obtained in violation of your Miranda rights.

6. What are Examples of Shoplifting?

• Walking into a grocery store with the intent to steal food items

• Entering into an electronics store with the intent to steal a television but changing your mind while you’re inside.

• Entering a store with the intent to steal, grabbing a bag of food, and leaving it next to the entrance as you leave.

7. Early Mitigation Package

Depending on the facts and circumstances of your case, submitting a mitigation package to the prosecuting agency may be appropriate. Specifically, if you were arrested or cited for taking food items and you have no prior criminal history. For instance, a mitigation package may consist of character letters, certificates of achievement, or perhaps your side of the story. This approach may help convince the filing prosecutor to reject the case completely and avoid charges from ever being filed against you. In other words, you learned a valuable lesson, you’re not likely to re-offend, and it wouldn’t be in the interests of justice to prosecute you because you’d suffer substantial repercussions – e.g., loss of state licensing, employment, etc.

8. Free Criminal Defense Consultation

If you’ve been arrested or cited for shoplifting under PC 459.5, contact Shoplifting Defense Lawyer John Rogers at the Law Offices of John D. Rogers for a free consultation.

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