9 Things You Didn’t Know About “Shoplifting” Charges

Penal Code 459.5

By: Diana Aizman

The law actually does not require someone to steal something to be prosecuted for shoplifting. You only had to have the “intent” to steal to be prosecuted under California Penal Code 459.5.

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Penal Code Section 459.5 Defined

The definition of shoplifting under Penal Code section 459.5 is Entering a commercial establishment during regular business hours, with intent to commit larceny, where the value does not exceed $950 (or intent to commit larceny does not exceed that amount).1

Under Proposition 47 which was passed into law2, with the November 4, 2014 California election, the legislature added a new misdemeanor section to the Penal Code.  It requires that defendants are sentenced to misdemeanors, instead of felonies, for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes

How Does The Prosecutor Prove This Charge

A prosecutor can prove you guilty to the charge of commercial burglary, as a misdemeanor, under Penal Code section 459.5 if:

  • The crime occurred during business hours, and
  • If you entered the commercial building with the INTENT to take property that does not exceed $950 in value.

Can you also be charged with theft or burglary and shoplifting?

  • If you succeed in taking the property from the store, Penal Code section 459.5 specifically states that, “No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”3

What If You Didn’t Actually Steal Anything?

You DO NOT have to actually STEAL anything in order to be charged. You just have to have the “intent to take property.”

  • If you do actually steal merchandise, and you are caught with merchandise valued at $950 or less you may also be charged with shoplifting under Penal Code 459.5.

Example:

Kathryn walks into Saks one morning, and sees a pair of Jimmy Choo heels that she falls in love with. Kathryn goes to the cashier and asks for her size, and the salesman brings them out for her to try on. She asks the salesman the price, to which he replied, “$875.” As Kathryn is trying on the shoes, the salesman is called away to assist another customer, and she decides to take the shoes, by putting them in her tote bag. Kathryn quietly leaves the store, but is stopped by a Loss Prevention Agent as she exits.

Before & After Prop 47

BEFORE Prop. 47:

Before Proposition 47 was enacted, if you entered a commercial business, during business hours, with the intent to commit theft, and even if the value of the item stolen did not exceed $950, then you could have been charged with felony commercial burglary.

AFTER Prop. 47:

Now, since Proposition 47 has passed, under these facts, because it was in a commercial business during hours of operation, Kathryn can be charged as shoplifting. Therefore, if you enter a commercial business, during business hours, with the intent to commit theft, and the value of the item stolen does not exceed $950, then you could be charged with a misdemeanor “shoplifting” charge.

What This Means:

Burglary of a store or commercial establishment is considered “commercial burglary.” Before Proposition 47 passed, a commercial burglary could be charged as a felony or misdemeanor under California Penal Code section 459.  Now, with Proposition 47, California Penal Code section 459. 5 makes it a misdemeanor if you enter a commercial establishment with the intent to take merchandise worth $950 or less.

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Exception To The Law

You will not be eligible for a misdemeanor “shoplifting” charge under Penal Code § 459.5 IF:

  • You have any serious or violent convictions. For example, rape, murder, possession of weapon of mass destruction4.
  • You are registered as a sex offender. For example, under P.C. 290(c), the mandatory sex registration provision.

Penalties

The severity of the penalties that a court may impose at sentencing depends on several factors, including the facts of your case and your criminal history. Depending on the circumstances, a conviction under pc 459.5 can carry probation, jail time, and/or fines as listed:

  • Misdemeanor
  • Up to 180 days in county jail
  • Up to 3 years summary (informal) probation
  • Fines and fees up to $1000, as determined by the court
  • Additional requirements, as determined by the court
  • Any combination of the above, as determined by the court
  • If you are a noncitizen, ineligibility for admission and other immigration consequences, as determined by the immigration court.

Legal Defenses

Depending on the circumstances, an experienced and diligent attorney, like the attorneys of the Aizman Law Firm, will evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to a charge under Penal Code section 459.5:

  1. There was NO INTENT.5

Penal Code section 459.5 specifically requires, “entering commercial establishment during regular business hours, with intent to commit larceny.” Intent is a critical aspect of this charge. That means that you must have INTENDED to take the property in question. If you were not aware of the property at the time, or mistakenly walked out with the property, then there is NO INTENT.

Example:  

Olivia goes to Bloomingdale’s to buy her mother a present for her birthday. She asks the sales clerk how much the Michael Kors bag she selected costs. The clerk tells her, “$458.” Olivia decides that that is too much money to pay for a purse, but she wants the bag anyway. She then places the Michael Kors purse in her tote bag and walks out of the store, without paying for it. Is there intent?

YES. Intent CAN be established even if you did not intend to take any property when entering the property, but developed the intent while on the property, and acted in a way to permanently deprive the business of their property.

  1. You were a victim of entrapment6 by law enforcement officials.
  • Entrapment: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead.  Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”7
  1. There is INSUFFICIENT EVIDENCE against you.
  • Lack of Evidence: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under the law of Penal Code § 459.5. This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.

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Related Offenses

Petty Theft – Penal Code 484(a)

Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.

Penal Code Section 459 – Burglary:          

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petty larceny or any felony is guilty of burglary.

Penal Code Section 487 – Grand Theft:                   

Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b)…(b) Not-withstanding subdivision (a), grand theft is committed in any of the following cases: (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period.(c) When the property is taken from the person of another.(d) When the property taken is any of the following:(1) An automobile. (2) A firearm

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Footnotes

  1. Penal Code 459.5. (a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property []
  2. California Proposition 47, the Reduced Penalties for Some Crimes Initiative, was on the November 4, 2014 ballot in California as an initiated state statute. The measure was approved. The initiative reduces the classification of most “nonserious and nonviolent property and drug crimes” from a felony to a misdemeanor. Specifically, the initiative: Mandates misdemeanors instead of felonies for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes. A list of crimes that will be affected by the penalty reduction are listed below. Permits re-sentencing for anyone currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors. About 10,000 inmates will be eligible for resentencing, according to Lenore Anderson of Californians for Safety and Justice. Requires a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public. Creates a Safe Neighborhoods and Schools Fund. The fund will receive appropriations based on savings accrued by the state during the fiscal year, as compared to the previous fiscal year, due to the initiative’s implementation. Estimates range from $150 million to $250 million per year. Distributes funds from the Safe Neighborhoods and Schools Fund as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board and 65 percent to the Board of State and Community Correction. The measure requires misdemeanor sentencing instead of felony for the following crimes: Shoplifting, where the value of property stolen does not exceed $950, Grand theft, where the value of the stolen property does not exceed $950, Receiving stolen property, where the value of the property does not exceed $950, Forgery, where the value of forged check, bond or bill does not exceed $950, Fraud, where the value of the fraudulent check, draft or order does not exceed $950, Writing a bad check, where the value of the check does not exceed $950, Personal use of most illegal drugs []
  3. Id. []
  4. See Also San Francisco Public Defender Prop 47 FAQ []
  5. Criminal intent is a necessary component of a “conventional” crime and involves a conscious decision on the part of one party to injure or deprive another. It is one of three categories of “mens rea,” the basis for the establishment of guilt in a criminal case. There are multiple shades of criminal intent that may be applied in situations ranging from outright premeditation to spontaneous action. It is possible to establish criminal intent even when a crime is not premeditated. Individuals who commit a crime spontaneously may still understand that their actions will cause harm to another party and contravene existing criminal law. In other words, an individual that takes or withholds action with the knowledge that such behavior will lead to the commission of a crime can be said to possess criminal intent. []
  6. Definition from (West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.) The act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commitEntrapment is a defense to criminal charges when it is established that the agent or official originated the idea of the crimeand induced the accused to engage in it. If the crime was promoted by a private person who has no connection to thegovernment, it is not entrapment. A person induced by a friend to sell drugs has no legal excuse when police are informedthat the person has agreed to make the sale. The rationale underlying the defense is to deter law enforcement officers from engaging in reprehensible conduct by inducing persons not disposed to commit crimes to engage in criminal activity. In their efforts to obtain evidence and combat crime,however, officers are permitted to use some deception. For example, an officer may pretend to be a drug addict in order to apprehend a person suspected of selling drugs. On the other hand, an officer cannot use chicanery or Fraud to lure a person to commit a crime the person is not previously willing to commit. Generally, the defense is not available if the officer merely created an opportunity for the commission of the crime by a person already planning or willing to commit it.The defense of entrapment frequently arises when crimes are committed against willing victims. It is likely to be asserted tocounter such charges as illegal sales of liquor or narcotics, Bribery, Sex Offenses, and gambling. Persons who committhese types of crimes are most easily apprehended when officers disguise themselves as willing victims. Most states require a defendant who raises the defense of entrapment to prove he or she did not have a previous intent to commit the crime. Courts determine whether a defendant had a predisposition to commit a crime by examining the person’sbehavior prior to the commission of the crime and by inquiring into the person’s past criminal record if one exists. Usually,predisposition is found if a defendant was previously involved in criminal conduct similar to the crime with which he or she is charged. When an officer supplies an accused with a tool or a means necessary to commit the crime, the defense is not automaticallyestablished. Although this factor may be considered as evidence of entrapment, it is not conclusive. The more important determination is whether the official planted the criminal idea in the mind of the accused or whether the idea was already there. Entrapment is not a constitutionally required defense, and, consequently, not all states are bound to provide it as a defense in their criminal codes. Some states have excluded it as a defense, reasoning that anyone who can be talked into a criminal actcannot be free from guilt. []
  7. In criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the “criminal.” Entrapment, if proved, is a defense to a criminal prosecution. The accused often claims entrapment in so-called “stings” in which undercover agents buy or sell narcotics, prostitutes’ services or arrange to purchase goods believed to be stolen. The factual question is: Would Johnny Begood have purchased the drugs if not pressed by the narc? []

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