PENAL CODE 490.4 PC – ORGANIZED RETAIL THEFT

Under California Penal Code § 490.4 PC, engaging in organized retail theft, defined as the collaborative theft of merchandise from a physical store or online marketplace by two or more individuals, constitutes a criminal offense. The prosecution of organized retail theft can take the form of either a felony or a misdemeanor, depending on the circumstances of the case.

There has been a significant increase in organized retail theft in California, particularly in Los Angeles and San Francisco. A notable incident took place at the Westfield Topanga Nordstrom, where 30 masked individuals carried out a “smash-and-grab” operation, making off with luxury merchandise valued at over six figures.

Section 490.4 – [Effective until 1/1/2026] Organized retail theft(a)

A person who commits any of the following acts is guilty of organized retail theft, and shall be punished pursuant to subdivision (b):(1) Acts in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value.(2) Acts in concert with two or more persons to receive, purchase, or possess merchandise described in paragraph (1), knowing or believing it to have been stolen.(3) Acts as an agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of an organized plan to commit theft.(4) Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake any of the acts described in paragraph (1) or (2) or any other statute defining theft of merchandise.(b) Organized retail theft is punishable as follows:(1) If violations of paragraph (1), (2), or (3) of subdivision (a) are committed on two or more separate occasions within a 12-month period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that 12-month period exceeds nine hundred fifty dollars ($950), the offense is punishable by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.(2) Any other violation of paragraph (1), (2), or (3) of subdivision (a) that is not described in paragraph (1) of this subdivision is punishable by imprisonment in a county jail not exceeding one year.(3) A violation of paragraph (4) of subdivision (a) is punishable by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.(c) For the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:(1) The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act.(2) That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft.(3) The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale.(d) In a prosecution under this section, the prosecutor shall not be required to charge any other coparticipant of the organized retail theft.(e) Upon conviction of an offense under this section, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed.(f) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

Ca. Pen. Code § 490.4

Source: https://casetext.com/statute/california-codes/california-penal-code/part-1-of-crimes-and-punishments/title-13-of-crimes-against-property/chapter-5-larceny/section-4904-effective-until-112026-organized-retail-theft

WHAT ARE THE ELEMENTS OF CRIME?

To prove a crime under California Penal Code 490.4 PC – Organized Retail Theft, the prosecution must establish the following elements:

• The defendant acted in concert with one or more persons. This means collaborating or coordinating with others to commit theft.
• The theft must have been committed with the intent to sell, exchange, or return the merchandise for value. This applies to both physical stores and online marketplaces.
• The defendant could have participated in various ways, including:

• Stealing merchandise directly.
• Receiving, purchasing, or possessing stolen merchandise knowing or believing it was stolen.
• Acting as an agent for another individual or group to steal merchandise as part of an organized plan.
• Recruiting, coordinating, organizing, supervising, directing, managing, or financing the theft activities of others.

• The trier of fact may consider evidence such as:

• Previous acts of theft committed in concert with others.
• Possession of tools or devices used to facilitate theft.
• The nature and quantity of the stolen property suggesting it was intended for resale.

• If the thefts occur on two or more separate occasions within a 12-month period, and the total value of the merchandise exceeds $950, it can be charged as a more severe offense.

EXAMPLE

John and his associates conspired to systematically steal high-end electronics from multiple stores in a shopping mall. They would distract store employees, carefully plan their thefts, and then swiftly leave the premises with the stolen items. After being apprehended by law enforcement, John was charged with Organized Retail Theft under California Penal Code 490.4.

PENALTIES, PUNISHMENT, AND SENTENCING

In California, organized retail theft involving $950 or less is classified as a misdemeanor and could lead to a maximum jail term of one year.

If the theft exceeds $950, violating PC 490.4 becomes a wobbler offense, meaning it can be charged as either a felony or a misdemeanor. In California, a misdemeanor offense can result in a county jail sentence of up to one year, while a felony conviction may lead to imprisonment for 16 months, 2 years, or 3 years.

Additionally, fines and restitution for the stolen items may be imposed, and probation could involve staying away from the targeted stores. Importantly, you can still be convicted under PC 490.4 even if the other individuals involved are not apprehended, charged, or convicted.

DEFENSES

To defend against charges under California Penal Code 490.4 PC – Organized Retail Theft, several strategies may be employed, depending on the specifics of the case. Here are some common defense strategies:

1. Lack of Conspiracy

Argue that there was no agreement or conspiracy to commit theft. This defense can be effective if it can be shown that the defendant acted alone or was unaware of any coordinated plan involving others.

2. Coerced Confession

If the defendant’s confession was obtained through coercion, threats, or improper interrogation techniques, it may be challenged and possibly excluded from evidence.

3. Alibi

Providing evidence that the defendant was not present at the scene of the crime when it occurred can be a strong defense. This could involve witness testimony, surveillance footage, or other forms of evidence.

4. Duress

The defendant may argue that they were forced to participate in the theft under threat of harm to themselves or others. For this defense to be successful, it must be shown that the threat was imminent and significant.

5. Entrapment

If law enforcement induced the defendant to commit the crime that they otherwise would not have committed, this could be a viable defense. Entrapment requires proving that the police conduct would have caused a normally law-abiding person to commit the offense.

6. Insufficient Evidence

Challenging the prosecution’s evidence is a fundamental defense strategy. This could involve questioning the credibility of witnesses, the validity of surveillance footage, or any other evidence that links the defendant to the crime.

7. Illegal Search and Seizure

If the evidence was obtained through an unlawful search and seizure, it could be excluded from the trial. This defense is based on the Fourth Amendment, which protects against unreasonable searches and seizures.

8. Mistake of Fact

Arguing that the defendant believed they had a right to the merchandise or did not know it was stolen can be a defense. This strategy focuses on negating the intent element of the crime.

9. Statute of Limitations

If the alleged offense occurred beyond the statutory time limit for prosecution, the charges must be dismissed. For organized retail theft, the statute of limitations is typically three years from the date of the offense.

10. Impeachment of Witnesses

Discrediting the prosecution’s witnesses by highlighting inconsistencies in their testimony, questioning their motives, or demonstrating bias can weaken the prosecution’s case.

IMMIGRATION CONSEQUENCES

A conviction under California Penal Code 490.4 PC – Organized Retail Theft can have significant immigration consequences for non-citizens, including lawful permanent residents, visa holders, and undocumented immigrants. This crime is considered a crime involving moral turpitude (CIMT), which can trigger deportation proceedings. A CIMT designation means the offense involves dishonest or fraudulent conduct, which the U.S. immigration law views as a serious breach of moral standards. Multiple convictions for theft-related offenses or a conviction with a sentence of one year or more can result in inadmissibility, making the individual ineligible for certain immigration benefits, such as adjustment of status, naturalization, or re-entry into the United States.

Furthermore, a felony conviction under this statute can lead to mandatory detention during removal proceedings and potential bars on re-entry for up to 20 years, depending on the circumstances of the offense and the individual’s immigration history. Given these severe consequences, non-citizens charged with organized retail theft should seek immediate legal counsel from an attorney experienced in immigration law to navigate the complexities of their case and mitigate potential impacts on their immigration status. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

CAN A DEFENDANT GET A CONVICTION EXPUNGED?

Yes, a defendant convicted under California Penal Code 490.4 PC – Organized Retail Theft may be eligible for expungement under certain conditions. To qualify, the defendant must have completed all terms of their probation, including paying fines, restitution, and completing any community service or counseling programs. Additionally, the defendant must not have served a sentence in state prison but rather in county jail, as PC 490.4 offenses often result in jail time rather than prison. However, it’s important to note that while expungement can remove the conviction from a person’s criminal record for most purposes, it does not erase the conviction entirely and may still be considered for certain legal and immigration matters. Consulting with a qualified expungement attorney can provide the best guidance on eligibility and the process.

RELATED CRIMES

• Petty Theft (Penal Code 484(a) and 488)
• Grand Theft (Penal Code 487)
• Burglary (Penal Code 459)
• Robbery (Penal Code 211)
• Receiving Stolen Property (Penal Code 496)
• Conspiracy (Penal Code 182)
• Identity Theft (Penal Code 530.5)
• Forgery (Penal Code 470)
• Forgery (Penal Code 470)
• False Pretenses (Penal Code 532)

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

Navigating the complexities of California Penal Code 490.4 PC – Organized Retail Theft requires experienced legal representation to effectively manage potential consequences, including severe penalties and immigration repercussions. If you or a loved one are facing charges under this statute, seeking the expertise of a skilled theft crimes attorney is crucial. Attorney Cyrus Tabibnia at Tabibnia Law Firm specialize in criminal defense and have extensive experience handling cases involving organized retail theft. His dedicated approach ensures that every aspect of your case is thoroughly examined to develop the strongest defense strategy possible. For personalized legal assistance and to protect your rights, contact Tabibnia Law Firm today to schedule a consultation with Attorney Cyrus Tabibnia. Your future deserves the best defense.

Legal Sources

CA Penal Code § 490.4 (2023)