Penal Code § 463 PC – California “Looting” Laws

In Penal Code § 463 PC, California law defines the crime of looting as taking advantage of a state of emergency to commit burglary, grand theft or petty theft. Looting can be charged as a misdemeanor or a felony and is punishable by up to 3 years in jail.

463 PC states that “…Every person who violates Section 459, punishable as a second-degree burglary…during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year.”

The crime of “looting” in California consists of committing any of the following crimes during a state of emergency:

• Penal Code 459 PC burglary;
• Penal Code 487 PC grand theft; or
• Penal Code 484 PC petty theft.¹

A state of emergency can be declared by either the Governor of the State of California or a local governing body.² States of emergency are usually declared as a result of:

• Flood;
• Severe earthquakes;
• Riots;
• Wildfires; or
• Storms or other severe weather.

Examples

Charges under California’s looting law could be filed in situations like the following:

• After a major flood shuts down a city, two men travel to the deserted business district and break into a clothing store. Their intent is to steal all the dry merchandise as soon as they can get a car into the area.
• During a riot that results from an appalling case of police misconduct, some people break the windows of an electronics store. A woman goes inside and takes several iPods.
• People are evacuating a small town because of a wildfire that has caused the mayor to declare a state of emergency. Before leaving, a man stops by his local convenient store and finds that there is no one at the register. So he takes several 12-packs of beer without paying.

Penalties

The penalties for looting depend on the specific form of the crime one is alleged to have committed.

Both looting by burglary and (in most cases) looting by grand theft are wobblers in California law, which means that they may be charged as either a misdemeanor or a felony.³

The potential misdemeanor sentence for these forms of looting is one (1) year in county jail. The potential felony sentence is sixteen (16) months, two (2) years or three (3) years in custody.

And for either looting by burglary or looting by grand theft, there is a minimum jail sentence of one hundred eighty (180) days.⁴

Looting by petty theft is always a misdemeanor. The potential sentence is at least ninety (90) days and up to six (6) months in county jail.⁵

Legal defenses

If you are charged with looting in California, you may be able to get the charges reduced or dismissed by arguing one of the following common legal defenses:

• You lacked criminal intent;
• The police who arrested you violated “search and seizure” laws; and/or
• You were a victim of mistaken identification.

In this article, our California criminal defense attorneys⁶ will explain the following:

• 1. What is the legal definition of looting” in California?
  • 1.1. Looting by burglary
  • 1.2. Looting by grand theft
  • 1.3. Looting by petty theft
• 2. What are the penalties under Penal Code 463 PC?
  • 2.1. Looting by burglary penalties
  • 2.2. Looting by grand theft penalties
  • 2.3. Looting by grand theft firearm penalties
  • 2.4. Looting by petty theft penalties
• 3. How can a person fight the charges?
• 4. What additional crimes could the police charge you with?
  • 4.1. PC 404 & 405 participating in a riot
  • 4.2. PC 594 vandalism
  • 4.3. PC 602 criminal trespass
  • 4.4. Unauthorized entry into a closed area; sightseeing at an emergency

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the legal definition of looting” in California?

The legal definition of looting in California is committing any of the following offenses, during a state of emergency or a local emergency:

1. Burglary;
2. Grand theft (including grand theft auto and grand theft firearm); or
3. Petty theft.⁷

A “state of emergency” or “local emergency” means conditions which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county or city—and thus require the combined forces of several regions to combat.⁸

States of emergency may be declared by the Governor—and, once declared, can only be terminated by another proclamation of the Governor.⁹

Local emergencies, on the other hand, can be declared by the governing body of a city, county, or city and county—and last until terminated by that body.¹⁰

In practice, states of emergency and local emergencies are usually declared in the following kinds of situations:

• Earthquakes;
• Fires;
• Floods;
• Riots; and/or
• Severe weather amounting to a natural disaster.

 1.1. Looting by burglary

One way to commit the crime of looting is to commit a second-degree burglary during a state of emergency or local emergency.¹¹

The legal definition of a second-degree burglary is:

1. Entering any structure that is not an inhabited dwelling (such as a store, warehouse, etc.);
2. With the intent to commit either a theft (grand or petty) or any felony once inside.¹²

Example: The city where Doug lives experiences a major earthquake. The Governor declares a state of emergency in that city.

A liquor store near Doug’s house is badly damaged and has been closed since the earthquake. One night Doug walk to the store and finds that the locks are broken.

He enters and sees that most of the liquor bottles are broken but a number are still intact, including many bottles of expensive wine and cognac.

Doug goes home to get his SUV and drives back to the liquor store. He then enters the store intending to take home as many bottles as he can fit in his car. But the owner of the store surprises him there and calls the police.

Doug may be charged with looting by burglary. He didn’t actually succeed in stealing any liquor, but he entered the store with intent to commit theft—which is all that is required for the crime of burglary.

 1.2. Looting by grand theft

You may also be guilty of Penal Code 463 PC looting if you commit the crime of grand theft during a state of emergency or local emergency.¹³

The definition of grand theft is stealing property with a value of more than nine hundred fifty ($950) dollars.¹⁴

(Stealing any automobile or firearm used to be considered grand theft even if the item was worth less than $950—but the passage of Proposition 47 in 2014 changed that. Now, stealing is only grand theft if the property is worth more than $950 unless the defendant has certain serious priors on his/her record.¹⁵)

Example: The neighborhood where Sharon lives erupts in a riot after the local police department fails to discipline an officer who brutally used a Taser on a local teenager for no good reason. The mayor declares a local emergency.

Sharon spots an expensive hybrid car around the corner from a street where rioters are being confronted by police. She decides to take advantage of the confusion to break the car’s window, hotwire it and steal it.

Sharon may be charged with looting for committing the crime of grand theft during a state of emergency.

 1.3. Looting by petty theft

You also commit the crime of PC 463 looting if you commit a petty theft during a state of emergency or local emergency.¹⁶

A petty theft is simply any theft that is not grand theft—in other words, theft where the stolen items are worth nine hundred fifty dollars ($950) or less.¹⁷  

Example: Unseasonal rains lead to severe flooding in the town where Chris and his wife Marlene live. The Governor declares a state of emergency for the county.

Chris and Marlene hear rumors that a local grocery store, which was heavily damaged by the flood, has been broken into—and that people are walking in and taking whatever they want.

Chris and Marlene are retirees on a fixed income. They decide to check out the grocery store for themselves, and they see that the rumors are true.

So they walk inside and take several large bags of food for their dogs, several large packages of toilet paper and laundry detergent, and a few food items—all without paying. The total value of these items is several hundred dollars.

Chris and Marlene are guilty of the “petty theft” version of looting.

2. What are the penalties under Penal Code 463 PC?

The penalties for looting depend on the form of the crime one is alleged to have committed.

 2.1. Looting by burglary penalties

Looting by burglary is what is known as a “wobbler.” This is a California crime that may be charged as either a misdemeanor or a felony, at the prosecutor’s discretion¹⁸—with the decision usually based on:

• The alleged circumstances of the offense; and
• The defendant’s criminal history.

Burglary-looting as a misdemeanor carries the following penalties:

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail;
• A fine of up to one thousand dollars ($1,000); and/or
• Up to two hundred forty (240) hours of community service, which may include work in a program to rebuild the community.¹⁹

Burglary-looting as a felony carries the following penalties:

• Felony (formal) probation;
• Sixteen (16) months, two (2) years or three (3) years served in county jail under AB 109 California realignment;
• A fine of up to ten thousand dollars ($10,000); and/or
• Up to two hundred forty (240) hours of community service.²⁰

Regardless of whether looting by burglary is charged as a misdemeanor or a felony, the defendant is required to serve at least one hundred eighty (180) days in county jail—even if s/he is sentenced to probation.²¹

The only exception is if the judge decides that the interest of justice would best be served by reducing or eliminating that minimum jail term, based on the defendant’s particular circumstances.²²

Example: Tina is a single mother living in a small town. After her town is affected by a severe windstorm that damages most buildings, the county board of supervisors declares a local emergency for the area.

Tina has run out of diapers for her baby, and her car is not usable since a tree branch fell on it in the storm. Normally she shops at a nearby convenience store, but the store has been closed since the windstorm.

So Tina breaks a window to enter the convenience store and then steals several boxes of diapers once inside.

The prosecutor charges Tina with looting through burglary as a misdemeanor. She decides to plead guilty because she cannot afford a lawyer. The judge sentences her to probation.

Ordinarily she would be required to serve at least 180 days in jail. But because she is a single mother of young children, and because her criminal behavior was fairly minor, the judge makes a special decision to waive this requirement.

 2.2. Looting by grand theft penalties

Looting by grand theft is also a wobbler unless the stolen items include a firearm.²³

The potential penalties are almost identical to those described in Section 2.1 above for grand theft by burglary—including the minimum sentence of 180 days in county jail. The only difference is that grand theft looting penalties may include only up to one hundred sixty (160) hours of community service.²⁴

 2.3. Looting by grand theft firearm penalties

If the defendant is accused of California Penal Code 463 looting by grand theft, and the items stolen include a firearm—then the crime will always be charged as a felony.²⁵

Looting by grand theft firearm is punishable by the following:

• Felony probation, with a minimum of 180 days served in county jail unless the judge determines that this would not serve the interest of justice;
• Sixteen (16) months, two (2) years or three (3) years in California state prison;
• A fine of up to ten thousand dollars ($10,000); and/or
• Up to one hundred sixty (160) hours of community service.²⁶

 2.4. Looting by petty theft penalties

Looting by committing petty theft during a state of emergency is always a misdemeanor, unlike the other forms of Penal Code 463 PC looting.²⁷

The penalties for petty theft looting are:

• Misdemeanor probation, with a minimum of ninety (90) days served in county jail unless the judge determines that this would not served the interest of justice;
• Up to six (6) months in county jail;
• A fine of up to one thousand dollars ($1,000); and/or
• Up to eighty (80) hours of community service.²⁸

3. How can a person fight the charges?

Long Beach criminal defense attorney David F. Poblete²⁹ has this to say about California looting laws:

“In an ideal world, Penal Code 463, California’s anti-looting law, would be a tool to protect people’s property during natural or man-made disasters. Unfortunately, in reality it is sometimes used by police and prosecutors for much less desirable purposes. In particular, police can discourage or punish people who want to exercise their right to free speech and peaceful protest by threatening to arrest them for looting.”

If you or a loved one is charged with California looting, we can help you fight for justice, possibly with the help of one of the following common legal defenses:

You lacked criminal intent

Many prosecutions for looting are based on allegations that the defendant committed a burglary during an emergency.

But you only commit burglary if you enter a structure with the intent to commit a theft or felony once inside.³⁰

If a store or office were broken into during an emergency and you were caught inside, you may have been arrested for looting without any hard evidence that you intended to steal anything from the business or commit any other kind of felony. If this is the case, you can fight the charges on the basis of lack of intent.

The police violated search & seizure laws

Looting charges usually arise from arrests made during tense, chaotic situations. During riots or unsettled situations following natural disasters, police are typically nervous, overworked and sometimes just plain angry.

Under these sorts of conditions, police are liable to act irrationally or make mistakes. They may make arrests without either a California arrest warrant or probable cause to believe you were actually committing an offense. Just being present at the scene of a public disturbance that police find inconvenient should not be probable cause for them to arrest you.

The best criminal defense attorneys for these sorts of cases are those who also have experience in civil rights law—and can help make sure that a wrongful arrest does not also lead to a wrongful conviction for Penal Code 463 looting.

You were a victim of mistaken identification

For all the reasons just described, police dealing with emergency situations are prone to make mistakes—including misidentification of the people who were involved in unlawful activity.

Particularly if you were on the scene of a riot or a looting incident, and you happen to be of the same race or ethnicity as many of the people involved, you could easily be accused of engaging in wrongdoing simply because police or eyewitnesses mistook you for someone else.

4. What additional crimes could the police charge you with?

Common California crimes that are often charged along with—or instead of—Penal Code 463 PC looting include:

 4.1. PC 404 & 405 participating in a riot

“Rioting” is a separate crime under California Penal Code 404 PC.³¹

Rioting is defined as acting together with one or more other people to use force or violence—or credibly threaten to use force or violence—to disturb the public peace.³²

If you are identified by police as a “ringleader” of a riot or other disturbance that involves violations of California’s looting laws, you may be charged with both rioting and looting.

Rioting is a misdemeanor. It carries a county jail sentence of up to one (1) year, and/or a fine of up to one thousand dollars ($1,000).³³

 4.2. PC 594 vandalism

Penal Code 594 PC, California’s vandalism law, prohibits defacing, damaging, or destroying someone else’s property.³⁴

The penalties for California vandalism depend on the value of the property that is damaged. Vandalism is a misdemeanor if the value is less than four hundred dollars ($400)—but becomes a wobbler if the damage is worth $400 or more.³⁵

Unlike looting, vandalism does not carry a mandatory jail sentence—and it carries less of a stigma on a criminal record.

So in some cases, it may make sense to try to get looting charges reduced to vandalism charges.

 4.3. PC 602 criminal trespass

Penal Code 603 PC – California’s trespassing law prohibits entering another person’s property without permission to do so.³⁶

In most cases, trespass is a misdemeanor.³⁷

Let’s say you entered a commercial property during an emergency but the prosecutors do not have good evidence that you were committing a burglary by doing so, or that you stole anything while inside. In this case—or a similar one—trespass could be a useful plea bargain from Penal Code 463 PC looting charges.

 4.4. Unauthorized entry into a closed area; sightseeing at an emergency

California’s law against unauthorized entry into a closed emergency area, Penal Code 409.5 PC, makes it a crime to enter an area that has been closed by law enforcement because of a disaster such as a flood, earthquake, accident, explosion, etc. You are only guilty of this crime if you enter the area willfully and knowingly AND remain there even after you have been asked to leave.³⁸

Unauthorized entry into a closed area is a misdemeanor under Penal Code 409.5(c) PC.³⁹ It carries less of a stigma and lower penalties than looting and so it may be another helpful plea bargain from looting charges.

A similar offense is Penal Code 402(a) PC sightseeing at the scene of an emergency. This crime is charged against people who go to or stop at the scene of an emergency (whether the area is closed or not) and whose presence prevents emergency personnel from performing their duties.⁴⁰

Sightseeing at an emergency is also a misdemeanor and can be a helpful charge reduction from looting.⁴¹

For additional help…

For questions about California’s looting laws, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada “looting” laws, please see our page on Nevada “looting” laws.

Legal References: