§ 459.5 PC – California “Shoplifting” Laws & Penalties

Examples

• going into a mall department store with the intent to steal a $700 necklace.
• entering a bookstore with a plan to buy one book and sneak three others into a backpack.
• walking into a convenience store with the idea of stealing a six-pack of beer

Defenses

Several legal strategies tend to be effective in a shoplifting case. Some of these include:

• working out a civil compromise,
• completing a pretrial diversion program,
• showing that there was a mistake of fact, and
• showing that you only formed the intent to steal after entering a business (for example, an after-entry intent).

Penalties

The following table shows the potential misdemeanor sentence for shoplifting convictions in California.

Now that Proposition 36 has passed, a third-time theft offense can be a felony carrying up to three years of incarceration.

Our California criminal defense attorneys will address the following shoplifting topics in this article:

• 1. Elements
• 2. Defenses
• 3. Penalties
• 4. Immigration Consequences
• 5. Expungements
• 6. Can I detain a shoplifter?
• 7. How did Proposition 47 affect shoplifting?
• 8. Statute of Limitations
• 9. Are some cities no longer enforcing shoplifting laws?
• 10. Related Offenses
• 11. Additional Resources

1. Elements

California Criminal Jury Instruction “CALCRIM” 1703 spells out the elements of shoplifting. For you to be convicted of violating PC 459.5, prosecutors must prove beyond a reasonable doubt the following three elements:

1. you entered a “commercial establishment,”
2. you entered that establishment while it was open during normal business hours, and
3. you did so with the intent to steal property worth $950 or less.¹

A “commercial establishment” is a place of business established to exchange goods or services.²

Note that a prosecutor does not have to prove that you left a store with merchandise. This means you can be found guilty of shoplifting if a guard catches you red-handed in the store.³

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with shoplifting. In our experience, the following four defenses can be very effective in getting these charges dismissed.

Note that if you contact us as soon as you get cited for shoplifting, we can reach out to the D.A. before criminal charges get filed to try to persuade them that their case against you is weak and should not go forward. This is called a “prefile intervention,” and it can be very productive if we can point to big holes in the state’s evidence or misconduct by the police.

You Repaid the Business via a Civil Compromise

A civil compromise in a shoplifting case is when you agree to repay the victim’s business for any losses. In return, the business agrees not to seek prosecution. Losses to the business may include:

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

A civil compromise is not so much a “defense” as it is a legal mechanism for achieving a dismissal.

You Completed Informal Diversion

Informal diversion is when you plead guilty and agree to perform certain acts to avoid a guilty judgment. Once this agreement is made, the guilty plea is stayed until the completion of the agreed-upon acts.

Example: Nia appears before the judge on a shoplifting charge, and the judge offers her entry into an informal diversion program. The judge tells her to complete 25 hours of community service and repay the business for the stolen goods. Nia agrees and enters a plea of guilty. She is then given 6 months to complete her hours and repay the business. After Nia completes everything in the given time period, the judge dismisses the case.

Similar to civil compromises, completing diversion is less of a “defense” than it is a legal mechanism for avoiding a conviction.

You Were Mistaken about Certain Critical Facts (“Mistake of Fact”)

Mistake of fact is when you misunderstand certain facts that disprove an element of the crime. In Penal Code 459.5 cases, this defense is often used to show that you did not have the intent to steal.

Example: Doug is shopping when he sees a sweater on the ground that looks like one that he owns. He grabs it thinking it fell out of his backpack and then puts it in his bag. The sweater actually belongs to the store. Here, Doug is not guilty of a crime because he had no intent to steal. D

Another example of mistake-of-fact is that you simply forgot to pay when you left the store. This is a very common occurrence when harried shoppers are preoccupied with their to-do lists or are listening to something on their earbuds. If we can show that your failure to pay was an innocent accident, then criminal charges cannot stand.

You Developed an Intent to Steal After Entering the Business (“After-Entry Intent”)

After-entry intent is when you have no intent to steal when you first enter a business, but you decide to steal something once inside a store. This can work as a defense since shoplifting requires you to have an intent to steal upon entering a shop.

Intent is always a difficult thing for prosecutors to prove since there is no way to get inside of your head. Often they rely on surveillance video in the hopes that your behaviors when entering a store indicate that you were “on a mission” to steal.

However, we would argue that any such interpretations are subjective, and that you cannot deduce anything from grainy security footage. Note, though, that even with this “after-entry defense,” you might still be found guilty of the separate crime of petty theft.

A shoplifting conviction in California under 459.5 PC can lead to up to 6 months in jail.

3. Penalties

If you are caught shoplifting, you face a misdemeanor charge. Shoplifting is punishable by:

• custody in county jail (as opposed to state prison) for up to six months, and/or
• a maximum fine of $1,000.

If you have prior convictions of shoplifting, you are more likely to be sentenced to the higher end of the penalty range.

As an alternative to jail, the judge can assign you to probation for up to two years. If the judge assigns you to probation longer than one year – and you are under 25 years old – the court must if possible refer you to a program modeled on healing-centered, restorative, trauma-informed, and positive youth development approaches and that is provided in collaboration with community-based organizations.

Now that Proposition 36 has passed, a third-time theft offense can be a felony carrying 16 months, 2 years, or three years of incarceration. It does not matter if the prior two convictions were for petty theft, shoplifting, burglary, robbery, or carjacking.⁴

Diversion

As discussed above, you may be eligible for a diversion program where the charge gets dismissed once you complete various court orders. Examples include:

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

When Shoplifting Becomes a Felony

Normally shoplifting is a misdemeanor, but the D.A. can choose to bring felony shoplifting charges instead when you have been previously convicted of either:

• gross vehicular manslaughter (PC 191.5),
• murder, attempted murder, or solicitation under PC 187,
• a sex crime requiring sex offender registration,
• any sex offense on a child under 14 years old,
• any sex offense committed through force, violence, or threats,
• any serious felony or violent felony punishable by life in prison or death.

As a California felony, shoplifting carries:

• 16 months, 2 years, or 3 years in county jail, and
• up to $10,000 in fines.

Note that crimes which can be charged as either misdemeanors or felonies at the prosecutor’s discretion are called wobblers.

Civil Demand Letters

Merchants may also make a civil demand under Penal Code 490.5 PC. This is when the business owner demands that you pay them back for the stolen merchandise or risk being sued.

This civil lawsuit would be completely separate from the criminal case. Also, civil demand letters are sent not by the merchant but by a law firm representing them. These letters ask for:

• full restitution and
• up to $500 to recover costs the merchant allegedly incurred by your alleged theft.

Unlawful Deprivation of a Retail Business Opportunity

It is a separate crime under PC 496.6 to possess shoplifted retail property valued at more than $950 with the intent to sell, exchange, or return it. This offense – called unlawful deprivation of a retail business opportunity – is a wobbler.

As a misdemeanor, violating PC 496.6 carries up to one year in jail. As a felony, violating PC 496.6 carries a jail sentence of either:

• 16 months,
• 2 years, or
• 3 years.

Under PC 12022.10, you may face sentencing enhancements for selling, returning, or exchanging property you acquired through retail theft, as this chart shows:

Restraining Orders

If you shoplifted, PC 490.8 allows the court to issue a two-year restraining order barring you from entering the retail establishment.

4. Immigration Consequences

A PC 459.5 conviction should not make you deportable.⁵ Still, immigration law is always changing, and non-citizens charged with any crime are advised to seek legal counsel.

5. Expungements

You can get a shoplifting conviction expunged if you successfully complete:

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

Having a clean criminal record greatly increases your employment prospects.

6. Can I detain a shoplifter?

Loss prevention officers – who are private security guards employed by many stores to prevent shoplifting – can do the following if they believe you are stealing store property:

1. Ask to look in your bag (but you can refuse),
2. Use reasonable force to detain you,
3. Detain you for a reasonable time, and
4. Require you to stay with them until police officers arrive.

Note that you are not required to speak with a loss prevention officer. You should say nothing until you speak with a lawyer.

Shoplifting Arrests Laws

Under Penal Code 836, police may arrest you without a warrant for suspected shoplifting that did not occur in the officer’s presence. For this warrantless arrest to be legal however, all of the following must be true:

1. The officer has probable cause to believe you committed the violation; and
2. The arrest is made without undue delay after the violation; and either:
   1. The officer obtains a sworn statement from a person who witnessed you committing the alleged violation; or
   2. The officer observes video footage that shows you committing the alleged violation; or
   3. You possess a quantity of goods inconsistent with personal use, and the goods bear security devices affixed by a retailer that would customarily be removed upon purchase; or
   4. You confess to the alleged violation to the arresting officer.

7. How did Proposition 47 affect shoplifting?

Prior to Prop 47’s passage in 2014, shoplifting was charged as burglary – which can carry felony penalties. Proposition 47 contains a provision that applies when:

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

The initiative allows you to apply for re-sentencing. If approved by the court, your sentence will be reduced from felony burglary to misdemeanor shoplifting.

8. Statute of Limitations

California prosecutors have one year after the alleged shoplifting to press charges against you. Learn more about criminal statutes of limitations in California.⁶

9. Are some cities no longer enforcing shoplifting laws?

In San Francisco especially, many shoplifting crimes are going unprosecuted because:

• shoplifting is only a misdemeanor and therefore not a high priority for police or prosecutors; and
• store clerks are afraid they will be injured or killed if they try to stop the shoplifters.

In 2021, California lawmakers tried to incentivize law enforcement into taking shoplifting more seriously by creating a new felony crime: Organized retail theft.

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.⁷

10. Related Offenses

1. Burglary – PC 459: Entering any structure, room, or locked vehicle with intent to commit a theft or felony once inside. You are more likely to be charged with burglary than shoplifting if you enter the shopping establishment after business hours.
2. Petty theft – PC 484: Stealing someone’s property or services, and that property or services are worth $950 or less. You are more likely to be charged with petty theft than shoplifting if the D.A. cannot show you had an intent to steal when you entered the store.
3. Grand theft – PC 487: Stealing someone else’s property, and that property is worth more than $950. It does not matter whether the property is in a store or not. This felony carries up to three years in prison and up to $10,000.
4. Trespassing – PC 602: Entering (or remaining) on someone else’s property without permission or without a right to do so. If you are accused of trying to steal from a store after business hours, you would likely face charges for trespass as well as burglary.

Additional Resources

For more information about shoplifting laws and related topics, refer to the following:

1. National Association for Shoplifting Prevention – Provides information on the causes of shoplifting, statistics, and prevention.
2. California Courts – Proposition 47 – Details on Prop 47 reducing some theft crimes from felonies to misdemeanors.
3. Loss Prevention Magazine – Information on retail loss prevention and shoplifting deterrence.
4. What the Panic Over Shoplifting Reveals About American Crime Policy – Article about how legislators are tackling shoplifting problems, by the Marshall Project
5. Cleptomaniacs And Shoplifters Anonymous, LLC (CASA) – Weekly self-help group.

Legal References: