Shoplifting

Entering a commercial establishment with the intent to steal, take away or drive off with a commodity in the store amounts to shoplifting. These actions can also be summarized as taking another person’s property without their permission to deprive the property owner of the rights to their property. This definition also describes burglary. Before 2014, shoplifting offenders faced burglary convictions. However, Proposition 47 established shoplifting as a separate crime whose sentencing could lead to petty or grand theft penalties. This article addresses shoplifting in detail.

Most people consider shoplifting a minor offense. This assumption is unfounded. Business owners invest heavily to secure their merchandise, including purchasing security equipment, hiring security personnel, and insuring their products. Thus, through the law enforcement department and the DA’s office, the government is inclined to pursue shoplifting cases to their logical conclusion. You, therefore, are at risk of a conviction, which could mean significant time behind bars. It is in your best interest to hire a defense attorney. The California Criminal Lawyer Group is ready to offer legal assistance if you or a loved one faces shoplifting charges in Santa Ana.

Understanding Shoplifting Laws

California law establishes shoplifting as a crime under Penal Code 459.5. The law makes it a crime to enter a commercial establishment to steal merchandise and steal said property. Further, you must have entered the establishment during operating hours. The value of the property under consideration is $950 or less.

PC 459.5’s definition of shoplifting presents the elements to be proven for the court to convict you of the offense. Prosecutors should make their case beyond a reasonable doubt. Failure to which, you will be found not guilty of the crime. They should demonstrate to the court that:

• You entered a commercial establishment
• You entered the business premises during regular operational hours, and
• You did so with the intent to steal property valued at $950 or less.

Here is a more detailed look at the elements.

Commercial Establishment

Commercial establishments or business premises refer to places where people exchange goods and services. The more immediate commercial establishments that come to mind are the retail units, including shops, convenience, and grocery stores. This definition also includes other commercial centers, including restaurants, jewelry stores, fitness clubs, private offices, and bars.

Operating Hours

Normal business hours refer to hours the business is open to serve the community. There is no specific time. The court will rely on the time the owners set as operating hours while also considering when similar businesses serve the community.

Intent to Steal

Intent to steal speaks to your intention to deprive the owner of their property. This element is pivotal in the case.

Prosecutors rely on the defendant’s actions to prove intent. These actions include:

• Failing to pay for the merchandise and attempting to run away
• Concealing the merchandise on your person or in a backpack
• Manipulating the goods
• Altering the price tags of the merchandise
• Placing products in different packaging or containers to avoid paying part or the entire purchase price of the product
• Going through a self-checkout lane scanning certain items while failing to scan others but pretending to do so

Note: Prosecutors need not prove you left the store with the merchandise. Of importance is that you took a step to conceal the property.

Value of the Property

California law caps the property value in a shoplifting case at $950. You will face grand theft charges under Penal Code 487 if the merchandise value exceeds $950.

Common Misconceptions About Shoplifting

Shoplifting to many people is a minor offense. Hence, many beliefs about the crime have been formulated and presented as true, only for defendants to realize that these beliefs are false. They include:

• Shoplifting is insignificant and is a victimless crime — Retailers in 2019 reported incurring losses to the tune of $62 billion to theft. These theft incidents included shoplifting. While a single incident could involve products less than $950, business owners suffer significant cumulative losses.

• If you pay for the merchandise, when you get caught, you are not liable for shoplifting charges — While paying for the products will be ideal for the business owner, this action will not deter the business owner from pressing charges and the DA from pursuing the charges.

• You can avoid an arrest if you leave the premises without being caught — With the adoption of surveillance footage in most commercial establishments, law enforcement offices will track you down after the shoplifting incident, and you will face prosecution.

• You cannot be charged with shoplifting if you act as a lookout — Lookouts also face shoplifting or aiding and abetting charges (a PC 31 violation). The decision lies with the DA on what criminal charges to pursue.

• You are not a shoplifter when you buy one item while stealing another — You are shoplifting as long as you conceal a product to steal it.

• Shoplifting is justified when the establishment overcharges for the product — Shoplifting is still a crime, and no justification changes this fact. If you have any grievances about the product or attendants in the store, you should channel them through the various consumer watchdog agencies.

• You are not legally liable for shoplifting if caught within the store — Shoplifting does not occur when you make away with the products. Prosecutors rely on your intention to steal the product, explained by your actions to conceal the product.

Civil Liability in Shoplifting Cases

Shoplifting can result in criminal and civil action. Both are independent of each other.

Penal Code 490.5 allows the company or an authorized law firm to send a civil demand letter to the accused in a shoplifting matter. The letter demands payment for losses incurred because of the offense. This demand letter will still be issued even if the property was recovered and not damaged.

It is worth emphasizing that a civil letter is issued through a civil action. The property owner could use this channel to recover losses incurred if you face prosecution for shoplifting.

The affected party could seek the following in a demand letter:

• The cost of the item the shoplifter made away with or attempted to steal — Expect this demand in situations where the store was unable to recover the item
• The cost of the loss prevention officer or store employee that handled the shoplifting case, and
• The cost of damaged goods, if any.

Under the law, store owners can only recover $500 in losses regardless of the value of the product the shoplifter made away with or attempted to take. If a shoplifter ignores the letter, Penal Code 490.5 allows the affected store owner to pursue the matter in a small claims court.

Despite the letter being a civil action, your criminal defense attorney will help in the matter. As soon as you receive the letter, contact your attorney. He/she will advise on what action best suits the case.

When you receive the letter, the first thought many have is to pay. However, doing so can be interpreted as an admission of guilt. Additionally, paying the sum demanded does not stop the store owner from pursuing criminal or civil action. Thus, it is best to leave it to your attorney to handle it.

The California Criminal Lawyer Group attorneys will negotiate for a lower ask in this situation. Further, the attorneys will ensure that no criminal or civil action will be instituted against you after meeting the business owner’s demands.

Note: Store owners have one year to file shoplifting charges per California’s Statute of Limitations.

Can a Store Owner Detain a Shoplifter?

PC 490.5, a store owner can detain a customer if he/she has probable cause to believe the customer is a shoplifter. This right is, however, subject to three rules:

• The time under detention is reasonable — What is appropriate is a matter of fact to be determined by the judge. However, the law considers the time you are held awaiting the arrival of a police officer as reasonable.
• Detention is solely used to allow for investigations into possible shoplifting.
• The store owner uses reasonable non-deadly force to detain a suspected shoplifter — The force used should be appropriate to protect himself/herself and/or protect the suspect from escaping.

Best Defense Strategies You Can Use in a Shoplifting Case

Legal defenses are case-based, meaning attorneys will use varying strategies depending on the prevailing circumstances. Therefore, your attorney will use one of the following defenses.

Mistake of Fact

A mistake of fact occurs when an individual believes the situation to be true and thus commits an illegal act when that was not the intention. The mistake, however, must be reasonable.

In an unreasonable mistake of facts, attorneys could still use this defense if they can show that the action negates the required intent of stealing.

For example, Charlotte had bought chocolate bars from a convenience store in the morning. She went back to the store in the afternoon. An individual bumped into her causing her bag to hit chocolate bars in the aisle. The bars were similar to the brand she had bought earlier. Charlotte picks fresh chocolate bars and places them in her bag, thinking they are hers. She is caught and accused of shoplifting.

Charlotte is innocent of shoplifting. She picked the chocolate bars thinking they were from the morning purchase. Thus, Charlotte did not have an intent to steal.

After-Entry Intent

Shoplifting requires you to intend to steal upon entering a commercial establishment. You are not guilty of shoplifting if you formulated this intent after entering the building. This defense seeks to have you not found guilty of shoplifting. However, the act of stealing could lead to petty theft charges.

Civil Compromise

When you pay the ask by the store owner in the civil demand letter in exchange for him/her not seeking criminal action, you achieve a civil compromise. If this is agreed upon, your attorney will use this defense and present a copy of the agreement to the court to have the shoplifting charges dropped.

Informal Diversion Program

In other instances, you could plead guilty to shoplifting in exchange for entry to an informal division program. Prosecutors or your defense attorney could introduce this provision in plea negotiations.

Trials are expensive for both the government and the defense. Therefore, pleading guilty to a lesser crime in exchange for reduced penalties favors both parties. However, talk with your defense attorney before agreeing to plead guilty.

If so approved, you could serve community service hours instead of time in jail.

Proposition 47

Before 2014, shoplifters were charged with burglary, a PC 459 violation. A conviction resulted in felony penalties. However, among other issues, California voters sought to reduce the shoplifting charges from a felony to misdemeanor violations. Prop 47 was passed and adopted in 2014 to address these concerns. Therefore, anyone convicted on shoplifting charges would receive misdemeanor penalties instead of felony punishment.

It is also important to point out that Prop 47 allows for resentencing. Anyone convicted of burglary charges if he/she committed shoplifting can reapply for resentencing. If approved, a judge will reduce the charges from felony burglary to misdemeanor shoplifting.

Penalties If Convicted For Shoplifting

Shoplifting is a misdemeanor violation. The offense is punishable by a jail sentence of up to six months and/or a fine not exceeding $1,000.

First-time offenders can avoid jail time through the diversion program. Should the judge allow your entry into the diversion program, your shoplifting charges will be dismissed. You will, however, be required to meet the following conditions.

• Pay a fine
• Pay restitution to the store owner
• Take an anti-theft program and/or
• Complete community service hours

If you have any priors, the judge could issue heftier penalties.

Will a conviction for shoplifting adversely affect my immigration status?

No. Shoplifting is not a deportable offense. These crimes include aggravated crimes, drug offenses, violent crimes, and firearm offenses.

Expungement of a Shoplifting Criminal Record

Penal Code 1203.4 allows defendants to withdraw a no contest or guilty plea and re-enter a not guilty plea or have a case dismissed. If granted, you will be released from any adverse consequences of a conviction.

Under PC 1203.4, convicted for misdemeanors or felonies can have their convictions expunged provided that the defendant:

• Has completed their probation
• Did not serve time in prison for the offense or served time in prison but would have time in jail had the defendant committed the crime after the enactment of Proposition 47. This provision addresses individuals who were convicted on burglary charges for committing shoplifting.

An expungement is particularly beneficial since it releases you from the penalties and disabilities associated with the conviction. For example, you do not have to disclose your conviction to your potential employer on job applications.

According to California’s ban the box law, employers are prohibited from inquiring about your criminal history as a condition for your employment unless they provide a conditional offer of employment. A conviction removes this hurdle. You do not have to disclose to your potential employer your prior even after your employer gives you a conditional offer of employment.

Offenses Related to Shoplifting

There are three crimes related to shoplifting, namely:

• Burglary, a PC 459 violation
• Petty theft, a PC 484 violation
• Grand theft, a PC 487 violation

1. Burglary

Entering a structure or a locked vehicle to commit petty or grand theft or any felony offense results in burglary charges. You could face a burglary charge even if you did not forcefully gain entry into a building or locked vehicle.

Prosecutors need to prove the following for you to be found guilty.

• You entered a room within a building, a building, a locked car,
• You intended to commit a crime at the time you entered the building or locked the vehicle
• One or more of the following is true:

• The property you stole or intended to steal was valued at more than $950
• The structure you entered was not a commercial establishment
• The building you entered was a business premise, but you accessed it after business hours.

The above elements distinguish a commercial establishment from residential property. This distinction is pivotal because it determines the penalties you will face.

First-Degree Burglary

You face first-degree or residential burglary charges when accessing an inhabited residential property.

Second-Degree Burglary

Otherwise known as commercial burglary are charges you face when accused of accessing a business premise outside operating hours.

Punishment for a Burglary Offense

As pointed out, you can either face first or second-degree burglary charges.

If convicted of a first-degree burglary violation, you will face felony penalties. They include a prison term of 2, 4, or 6 years and/or a fine not exceeding $10,000. A judge could impose probation terms instead of time in jail.

You will face misdemeanor or felony penalties if you are convicted of second-degree burglary. A conviction for a misdemeanor results in a one-year jail term and/or a fine not exceeding $1,000. Felony convictions, on the other hand, result in a jail term of 16 months, 2 or 3 years.

2. Petty Theft

You will face petty theft charges when you steal from another property or services valued at less than $950. The critical differentiator between shoplifting and petty theft is that shoplifting requires you to access the business premises during operating hours. On the other hand, you will face petty theft charges if you fail to pay for services or steal goods worth $950 or less (regardless of the time).

Penalties for Petty Theft

If the defendant has no priors and the property in question is valued at no more than $50, the DA will seek infraction charges instead of misdemeanor violation charges, resulting in a $250 fine.

On the other hand, misdemeanor convictions result in a jail sentence of up to six months and/or a fine not exceeding $1,000.

3. Grand Theft

According to Penal Code 487, it is an offense to illegally take another’s property, services, or money valued at more than $950. Grand theft crimes include stealing property and failing to pay for services.

Grand theft is accomplished in three ways:

• Grand theft by larceny — Where you physically take off another’s property.
• Grand theft by false pretense — Where you deceive another to transfer possession and ownership of their property to you.
• Grand theft by trick — This occurs when you obtain another’s property through fraud or deceit, intending to deprive the owner of the rights to his/her property.
• Theft by embezzlement — Embezzlement is the fraudulent appropriation of property by an individual entrusted with its care or proper use.

Penalties for Grand Theft

Grand theft is a wobbler. You can either face a conviction on misdemeanor or felony charges.

The DA pursues misdemeanor violation convictions for first-time offenders with no criminal records. If convicted on misdemeanor charges, you will face up to one year.

Alternatively, if convicted on a felony charge, you will face 16 months, two, or three years in jail if the theft was of property other than a firearm.

If the property were a firearm, the penalties would increase. You will be convicted on felony charges, punishable by 16 months, two or three years in prison. Additionally, according to California's Three Strikes law, you will receive a strike on your record.

Contact a Reputable Santa Ana Criminal Defense Attorney Near Me

When facing shoplifting charges, hiring an attorney is the best decision. Your attorney can negotiate on your behalf with the prosecution and secure a plea deal that could have your charges reduced. Should your case proceed to trial, trust that your attorney will put up a robust defense that could also lead to a dismissal of your criminal charges.

At California Criminal Lawyer Group, we offer our clients legal advice and the best representation. If you or a loved one faces shoplifting charges in Santa Ana, turn to our team. Give us a call today at 714-844-4151 for a free case evaluation.