Penal Code 459.5 PC California “Shoplifting” Laws & Penalties

What are the California shoplifting laws?

In California, shoplifting is a crime when individuals take items from retail establishments without paying for them. In order to convict someone of 459.5 PC charges, prosecutors must be able to prove that:

• • you went into a store, office or other business.
  • you entered that establishment during normal business hours.
  • you did so with the intent to steal property worth $950 or less.

A “commercial establishment” is any place where goods or services are exchanged. A prosecutor does not have to prove that you intended to shoplift in order for you to be convicted of theft. If a guard catches you stealing, he or she can make an accusation against your character and hold the burden of proof.

What are the most effective defenses against a 459.5 PC charge?

Defense lawyers use several strategies to resolve or attack shoplifting charges, including:

• • You repaid the business via a civil settlement.
  • Under an informal diversion program, you may have performed certain acts.
  • you are innocent because certain critically important facts were unknown to you.
  • After entering a business, your intent to steal was formed.

Civil compromise

A civil compromise is a payment made by the offender to compensate for losses caused by the crime. In return, the victim business agrees not to press charges against the offender. Losses to the business may be:

• • damaged or lost merchandise.
  • the cost of loss prevention.

Informal diversion

Informal diversion is a plea agreement in which you agree to perform certain acts rather than go to trial. Once this agreement is made, the guilty plea is stayed until the completion of the agreed-upon acts.

Mistake of fact

Mistake of fact is a legal defense that involves the defendant’s misunderstanding of certain facts and circumstances. In Penal Code 459.5 cases, this defense may be used to show that you did not have the intent necessary for a theft conviction.

After-entry intent

After-entry intent refers to the situation where you do not intend to steal when you first enter a business. Instead, you make a conscious decision to steal something while inside the store. This is useful in defending against a charge of shoplifting, because it was not your intent to steal when you entered the store. Although this defense will help you avoid being found guilty of petty theft, it’s possible that the judge could still find you guilty of Petty Theft.

What happens when I get caught shoplifting for the first time in California?

If you are caught shoplifting, you will most likely be charged with a misdemeanor. A conviction for this crime can result in:

• • custody in county jail (as opposed to state prison) for up to six months, and/or
  • a maximum fine of $1,000.4

As discussed above, you may be eligible for a diversion program that requires completion of certain court orders in exchange for dismissal of the charge. Examples include:

• • paying a fine,
  • paying restitution to the retail establishment,
  • completing community service hours, and/or
  • taking an anti-theft class

People with prior convictions of shoplifting are more likely to be given stiffer penalties than first-time offenders. A merchant may also file a civil suit under Penal Code 490.5 PC.

Are there immigration consequences?

A conviction under this statute would not necessarily have negative immigration consequences. Under California law, certain criminal convictions can lead to deportation. For example, a person convicted of moral turpitude may face deportation. But being convicted of Penal Code section 459.5 will not make you deportable.

Can I get my conviction expunged?

If you have ever been convicted of shoplifting, an expungement may be possible. An expungement can help erase many of the hardships associated with conviction. Having a clean criminal record can greatly increase your employment prospects. A judge will grant an expungement if you meet the statutory requirements:

• • probation, or
  • your jail term (whichever was imposed).

Can you legally detain a shoplifter?

If a loss prevention officers – who are employed by many stores to prevent shoplifting – believe you are attempting to steal property from the store, they can do the following:

• • Ask to look in your bag (but you have the right to refuse this request),
  • The officers may use reasonable force to detain you.,
  • detain you for a reasonable time, and
  • require you to stay where you are until the police arrive.

NOTE: You are not obligated to speak with a loss prevention officer.

If you are suspected of shoplifting, it is best to remain silent until you speak with a lawyer. It is important to remember that loss prevention officers are not law enforcement officers – they are private security guards.

How did Proposition 47 affect the crime of shoplifting?

In 2014, California passed Proposition 47. Also known as the Reduced Penalties for Some Crimes Initiative, it changed many laws relating to nonviolent criminal offenses in that state.
Proposition 47 added shoplifting to California’s penal code in section 459.5. Prior to the initiative, shoplifting was considered burglary – a more serious crime that can lead to felony charges. Proposition 47 contains a clause that comes into play if:

• • you were previously convicted of burglary (prior to the new law), but
  • you actually committed the crime of shoplifting.

The initiative allows individuals to apply for resentencing. If the court approves your plea bargain, you will be sentenced for misdemeanor shoplifting instead of felony burglary.

How long after shoplifting can I be caught?

California prosecutors must file charges within one year of the alleged shoplifting.

Are there related offenses?

There are three types of shoplifting-related crimes:

• • burglary – PC 459,
  • petty theft – PC 484, and
  • grand theft – PC 487.

What is the charge for burglary in California?

In California, Penal Code 459 PC defines the crime of burglary

• • you enter any structure, room or locked vehicle, and
  • you do so with the intent to commit a theft or felony crime once inside.

Shoplifting is a subset of burglary where you:

• • enter an open business, and
  • do so with the intent to commit petty theft (or the stealing of an object worth $950 or less).

Note that shoplifting only applies to petty theft, which is a misdemeanor. However, burglary can be charged as a felony if there is intent to commit a felony.

What is the charge for petty theft in California?

Penal Code 484 PC is the California statute that says petty theft is:

• • stealing someone’s property or services, and
  • that property or services are worth $950 or less.

The main difference between petty theft and shoplifting is that:

• • shoplifting only involves “stealing” from an open business, and
  • Petty theft can involve “stealing” under any other situation or environment.

For example, you can be charged with petty theft if you take a neighbor’s shovel without permission. However, if you took the shovel from an open business, you could be charged with shoplifting.
If the value of the allegedly stolen items is $50 or less, and you have no prior theft convictions, the prosecutor may choose to charge petty theft as an infraction rather than a misdemeanor. An infraction carries a maximum fine of $250.

What is the charge for grand theft in California?

Penal Code 487 PC is the California statute that defines the offense of grand theft:

• • Taking someone else’s property, and
  • That property is worth more than $950.

There are two main differences between shoplifting and grand theft. These are:

• • Shoplifting is limited to taking something from an open business, and
  • Grand theft involves the taking of property worth more than $950.

Is shoplifting no longer prosecuted in some cities?

In San Francisco, many shoplifting crimes are not being prosecuted because:

• • shoplifting is usually a misdemeanor, and the police or prosecutors will often not prioritize catching shoplifters.
  • store clerks fear that an attempt to stop a shoplifter could result in injury or death.

In 2021, California lawmakers created a new felony crime of organized retail theft in an attempt to incentivize law enforcement to take shoplifting more seriously.

Organized retail theft occurs when:

• • two or more people act in concert to steal merchandise
  • with the intent to sell, exchange, or return the merchandise.

However, this new crime does not apply to

• • lone shoplifters or
  • people who steal merchandise for themselves,
  • who still comprise the majority of shoplifting cases.

If you are found guilty of a theft crime, the conviction could result in many consequences, including fines, incarceration, probation, and a criminal record. For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact Criminal Defense Attorney at Tabibnia Law Firm.