Penal Code 459.5 is California’s primary law on shoplifting. According to PC 459.5, a person can be charged with the offense of shoplifting if he/she enters into an open business establishment intending to steal merchandise.
The crime of shoplifting is categorized as a misdemeanor. If you are convicted for this offense, you will face grievous consequences, including serving jail time and paying hefty fines. Also, you will have a stained criminal record, which could prevent you from accessing various opportunities, such as employment, scholarships, university admissions, and decent housing.
If you or your loved one is facing shoplifting charges in Orange County, you will require a top-rated criminal defense attorney to help you win your case. We at the Orange County Criminal Defense Attorney Law Firm can assist you in building a robust defense strategy.
Often, shoplifting cases may appear to be ‘straightforward,’ simply because there might be video surveillance or security guards eager to testify against you. However, this does not mean that you cannot avoid a conviction. An experienced criminal defense attorney can utilize various defenses to keep you from serving jail time or being convicted entirely.
What is Shoplifting?
According to Penal Code 459.5, it is unlawful to enter an open commercial establishment during regular business hours with an intention to steal merchandise whose value is $950 or below. The criminal offense of shoplifting is classified as a misdemeanor.
The California Department of Prosecution can charge you with shoplifting if you intentionally conceal store items and leave without paying. Often, shoplifters hide items by putting them inside their clothes' pockets or bags. In a clothing store, shoplifters can put on the displayed clothes and simply leave while wearing them.
Unlike in other states where shoplifting is viewed as a form of theft, California has a specific law on shoplifting. In other states, shoplifting is customarily prosecuted as petty theft or grand theft, depending on the value of the items shoplifted. Also, some states can charge shoplifting as an infraction, if the cost of the store items was below $50.
Any individual is capable of shoplifting. Some individuals can just act on impulse, while others could probably be career criminals who regularly shoplift to obtain income. Amateur shoplifters typically steal store items for personal use. On the other hand, career criminals shoplift items primarily to resell them in the black market. Regardless of the circumstances that made you shoplift, you require high-quality legal representation to win your case.
Items that are commonly shoplifted are small and have high prices, such as jewelry, alcoholic beverages, cigarettes, groceries, razorblades, smartphones, gift cards, USB flash drives, cosmetics, and books, and clothing. Not all people who are charged with shoplifting do so intentionally. For instance, some may accidentally store items inside their bags and forget to pay for them before leaving.
What The Prosecution Must Prove Before Your Conviction
The burden of proof in California criminal cases is on the prosecution. The prosecutor is needed to offer proof beyond a reasonable doubt of the following elements for the jury to convict you for shoplifting:
- You entered a business/commercial establishment
- This establishment was open
- You had an intention to steal
Here is a brief discussion of each of these elements:
1. Entering Inside a Business/Commercial Establishment
The term ‘business/commercial establishment’ refers to any place where goods are sold, including grocery stores, supermarket chains, clothing stores, and electronic item stores. For you to be convicted for shoplifting, the prosecutor must prove that you entered a business/commercial establishment beyond a reasonable doubt. This means that if you had stolen goods from a non-commercial establishment, you could not be convicted.
Additionally, the prosecutor must prove that you walked into the establishment. Although this seems easy, it can be a headache for the prosecutor to provide sufficient proof that you walked into the store. For instance, no person could have seen you walk into the store or have an alibi.
2. Open Establishment
The prosecutor must provide sufficient proof to show that the commercial establishment was open during regular business hours. This element is what distinguishes shoplifting from burglary.
You cannot be convicted for shoplifting if supposedly; you had forced open a store’s entrance point. The typical situation in a case for shoplifting involves a person walking into an open store and soliciting customers.
3. Intention to Steal
The prosecution should prove beyond a reasonable doubt that you had a criminal intent to steal. Therefore, if you had accidentally put an item inside your bag or innocently forgot to pay for it, you will not be convicted.
Note that the prosecutor must establish that you had an intention to steal before walking into the store. You cannot be convicted for shoplifting if you simply acted on impulse after viewing an item while inside the store. The prosecutor does not need to prove that you left the store with the stolen merchandise. You could be convicted for shoplifting even if a security guard caught you red-handed while inside the store.
The Penalties for Shoplifting
Shoplifting is categorized as a misdemeanor. Upon conviction, you could serve a maximum jail term of six months in the county jail. Also, the court could order you to pay a fine of up to $1,000. If you have been convicted for shoplifting, you will receive a stain on your record. Consequently, you may be barred from accessing opportunities such as scholarships, university admissions, jobs, and decent housing. Generally, a conviction for shoplifting can have negative, long-lasting consequences in an individual’s life.
Probation instead of Jail Time for Shoplifting Convictions
You can avoid jail time, and instead, serve a probation term, upon conviction for shoplifting. Hiring an experienced criminal defense attorney will significantly improve the chances of being granted probation in lieu of jail time if you become convicted.
According to California criminal laws,if you are convicted for a misdemeanor, you can be sentenced to summary probation as an alternative to a jail sentence. In most instances, your attorney and the prosecutor will agree on a probation period during a plea bargain. The judge can also use his/her absolute discretion to grant you probation.
During probation, you must adhere to particular conditions, like:
- Restituting the victim
- Participating in a group or individual therapy
- Completing Caltrans roadside or community service work
- Seeking gainful employment
- Avoiding violation of any laws
You may also be required to appear before a judge to give progress reports periodically. If you fail to do so, you may be arrested. When giving progress reports, the judge reviews your case, and they could alter the probation conditions. The probation period for shoplifting is typically between 1 – 3 years. If you successfully complete the probation term, you can apply for an expungement.
Are there any Immigration Consequences for Shoplifting?
Unlike other criminal convictions, a conviction for shoplifting doesn’t have any adverse immigration consequences. According to US Immigration Law, certain criminal offenses can make a non-US citizen to:
- Get deported
- Be marked as ‘inadmissible’
For instance, if you have been convicted of murder, which is a crime involving moral turpitude, you will be deported. But, convictions under PC 459.5 cannot result in deportations.
Convictions for Shoplifting and Gun Rights
You will not lose your gun rights if convicted of shoplifting. In California, convicts of certain criminal offenses may lose their rights to own or possess firearms. However, a shoplifting conviction cannot make you lose your right to own or possess a gun.
If you lose your gun rights upon conviction for a criminal offense, the only way to restore them is to apply for a pardon from the Governor of California. The California Governor has absolute discretion to deny or grant pardon requests.
Shoplifting and the California Three Strikes Law
You will not receive a strike on your record if convicted for shoplifting. According to California criminal laws, certain crimes result in strikes. These crimes can be either serious or violent felonies, like rape, voluntary manslaughter, arson, kidnapping, extortion, burglary, robbery, or grand theft. Since shoplifting is a misdemeanor, you cannot get a strike.
When you receive a strike, you could serve longer and harsher imprisonment terms upon subsequent convictions. For instance, if you get the third strike, you could serve a state prison term of 25 years to life.
Sentencing Enhancements for Shoplifting Convictions
Various circumstances can make you receive additional punishments upon being convicted of shoplifting. Typically, the sentence imposed for shoplifting is a $1,000 fine or a jail sentence of anywhere between 1 day to 6 months. If there are any aggravating factors, you may receive longer jail time or be ordered to pay a fine that exceeds $1,000.
Some of these aggravating factors include:
- Prior convictions – If you have a previous shoplifting conviction, you receive more jail time. Note that the judge could still consider an expunged conviction during sentencing.
- Gun enhancements – You receive a sentencing enhancement if you used a gun to shoplift, or you found in possession of a firearm while shoplifting. You also receive more severe punishment if you shoplifted or attempted to shoplift a firearm. Moreover, you will automatically lose your gun rights upon conviction.
- Minors involved – You will receive a severe sentence if you used a minor to help you shoplift, or if you shoplifted or attempted to do so while in the presence of a minor.
- Gang crimes – Gang sentencing enhancements are incredibly severe. If you shoplifted or attempted to do so to further the interests of a criminal street gang, you might receive a state prison term of two years to life.
Note that for you to receive a sentencing enhancement, the prosecutor must prove beyond a reasonable doubt that there are aggravating factors in your case. Being convicted for shoplifting can result in dire consequences, but if aggravating factors exist, you may be imprisoned for a very long time.
Consequences of Shoplifting an Item whose Worth Exceeds $950
If you shoplift an item that costs more than $950, you will be charged with grand theft under California Penal Code 487. According to PC 487, it is unlawful to take another person’s property whose value exceeds $950. The criminal offense of grand theft is a wobbler. This means that it can be charged as either a felony or a misdemeanor, depending on the discretion of the prosecutor and the facts and circumstances surrounding your case.
If you are charged with misdemeanor grand theft, the maximum sentence you can receive upon conviction is a one-year jail term. Felony grand theft has more severe penalties. If you have been convicted of felony grand theft, you could be incarcerated for 16 months, two years, or three years.
Expungement of Shoplifting Convictions
The court can expunge a conviction for shoplifting. Penal Code 1203.4 is California’s primary law on expungement. According to PC 1203.4, most misdemeanor convictions can be expunged. Obviously, you would want an expungement since your shoplifting conviction will show up when an individual conducts a background check on you, including private employers and landlords. This can make you lose out on various opportunities.
You qualify for expungement after you have completed your probation term. If the court didn't impose a probation period, you would be required to wait for one year from your conviction date. When the judge expunges the shoplifting conviction, you will be able to state without fear of perjury that you have never been convicted of a criminal offense. As per PC 1203.4, expungement relieves an individual from all forms of disabilities and penalties arising from the conviction.
The Most Common Defenses to Shoplifting
You can avoid a shoplifting conviction by building a robust defense strategy. Some of the most common California legal defenses to shoplifting include:
- After-entry intent
- Civil compromise
- Mistake of fact
- Informal diversion
Here is a brief discussion of each of these defenses:
1. After-entry Intent
Remember that, for the court to convict you for shoplifting, the prosecutor must prove beyond a reasonable doubt that you had an intention to steal when entering the commercial establishment. If he/she fails to do so, you will receive an acquittal or have your charges lowered.
You can convince the jury that you didn’t have any intention to steal when entering the store. For instance, you can provide evidence showing that you had carried some cash or valid credit cards. Or, you can have witnesses testifying in your favor that you didn’t plan to steal, and you had only acted on impulse while inside the store. However, note that even if you are successful with this defense strategy and have your shoplifting charges dropped, you can still be charged with and convicted of petty theft.
2. Civil Compromise
You may agree with the owner of the commercial establishment to compensate him/her for all the losses incurred due to shoplifting. In return, the business owner promises not to involve law enforcement. Some of the losses you may have to compensate for include the cost of the items shoplifted, and the amount of money spent on loss prevention.
3. Mistake of Fact
You can utilize this defense if you believe that you were misunderstood. In shoplifting cases, this defense is usually used to demonstrate that the accused person did not intend to steal. For instance, maybe you innocently believed that the store items were yours, especially if they resemble your items. In such a situation, you can use this defense to obtain an acquittal.
4. Informal Diversion
You can opt to enter the informal diversion program. Here, you will plead guilty, and then agree to perform various acts so that the court cannot convict you. Some of the activities you are required to perform under this program include community service, Caltrans roadside work, or attending counseling sessions. You may also be asked to compensate for the shoplifted items. After you have completed all the activities required under the informal diversion program to the court’s satisfaction, you will receive a ‘not guilty’ judgment. This means that you won’t obtain a criminal record.
5. No Intention to Steal
The prosecutor must prove that you had an intention to steal. If you had put store items inside your bag and forgot to pay for them, you will not be convicted. But, for this defense strategy to be successful, you will be required to adduce sufficient evidence showing that you didn’t have a specific intent.
6. Human Rights Violations
When a private security guard at a commercial establishment suspects you of shoplifting, California law permits him/her to:
- Ask to search inside your bag (but you can refuse)
- Utilize reasonable force to put you under detention
- Detain you for a reasonable time
- Require you to remain at the establishment until law enforcement arrives
Note that you aren’t required to speak with the private security guard. We advise that if you find yourself in such a situation, it’s best to keep quiet until you contact an attorney. However, some overzealous security guards may attempt to go overboard, and subsequently, violate your human rights while at the store. For instance, they may torture you, force you to confess, or even unnecessarily invade your privacy.
Make sure you disclose to your criminal defense attorney everything that happened before you were arrested. Typically, if your attorney finds out that some of your human rights were violated during investigations, he/she will file for an evidence suppression hearing. Consequently, the court will strike off some parts of the prosecutor’s evidence. As a result, the prosecutor will be left with insufficient evidence, and your case will be dismissed.
7. Mistaken Identity
Your attorney can cast doubts on the prosecutor’s eyewitnesses. He/she can thoroughly cross-examine the eyewitness to get more details that can discredit his/her testimony or make him/her believe that you aren’t the right suspect. Often, this defense is applicable in most shoplifting cases. If you have strong evidence to suggest mistaken identity, you will receive an acquittal.
Offenses Related to Shoplifting
Three criminal offenses are related to shoplifting. They include:
- Grand theft
- Petty theft
Let us discuss each of these offenses briefly:
PC 459 is California’s primary law on burglary. According to PC 459, it is unlawful to enter any locked vehicle, room, or structure with the intention to steal or commit a felony. The main distinction between shoplifting and burglary is that in shoplifting, a person enters into an open establishment while in burglary, the person enters a locked area. In both of these crimes, the prosecutor must prove that the defendant had criminal intent.
2. Grand Theft
As per PC 487, you will be charged with grand theft if you take another person’s property, and its value exceeds $950. If a person shoplifted an item whose cost is more than $950, he/she would be charged under PC 487, instead of under PC 459.5. Unlike shoplifting, which is a misdemeanor, grand theft is a wobbler. This means that it can be charged as either a felony or a misdemeanor, depending on the discretion of the prosecutor.
3. Petty Theft
The California Department of Prosecution charges you with the criminal offense of petty theft, under PC 484, if you steal another person’s property, valued at or less than $950. The main distinction between shoplifting and petty theft is that shoplifting involves a person stealing from an open business. In contrast, petty theft involves a person stealing under any environment or situation. Just like shoplifting, petty theft is categorized as a misdemeanor. Its penalties include a county jail term of a maximum of six months or a fine of up to $1,000.
Find an Orange County Criminal Defense Lawyer Near Me
If you or your loved one has been accused of shoplifting, you should obtain professional legal help as fast as possible, even if you would like to settle the matter with the store owner. An attorney could protect your legal rights and ensure you receive a favorable outcome. We at the Orange County Criminal Defense Attorney Law Firm are here to help you. Call us today at 714-740-7848 for a free, confidential consultation.