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Penal Code 459.5 PC - Shoplifting Laws in California

California Penal Code 459.5 defines the misdemeanor crime of shoplifting as entering an open commercial business during regular hours with the intent to steal merchandise valued at $950 or less.

Simply put, shoplifting is stealing items from a store when the total value is under $950. You could face more serious Penal Code 487 PC grand theft charges if the amount exceeds $950. A shoplifting conviction under his law carries up to six months in county jail, a fine of up to $1,000, probation, and restitution.

Penal Code 459.5 PC - Shoplifting Laws in California
PC 459.5 shoplifting law makes it a crime to enter an open store with the intent to steal merchandise.

PC 459.5 says, “(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 intending 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 a crime 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 charged with shoplifting may also be charged with burglary or theft of the same property.”

Suppose you were arrested or cited by police for shoplifting.  In that case, you will most likely receive a civil demand letter saying you must pay restitution or be sued.

What Must Be Proven for a Conviction?

To convict you for violating PC 459.5 shoplifting law, the prosecutor must prove all the elements of the crime beyond a reasonable doubt, such as the following:

  • You entered a business open to the public,
  • The business was open during regular hours, and
  • You had the intent to steal something worth $950 or less

The prosecutor must prove criminal intent, which they will typically use your behavior, showing you were attempting to steal something.

A “commercial business” means an establishment exchanging goods or services with the public. It's a myth that you must leave the store with the merchandise to be charged with shoplifting.

What Are the Related Crimes?

Several California laws are related to Penal Code 459.5 Pc shoplifting, including the following:

  • Penal Code 459 PCburglary can be charged if you enter a structure with the intent to commit a felony inside and would be charged if you entered a business after regular business hours and the store was closed;
  • Penal Code 602 PCtrespassing means to enter someone's property without permission after prior notice not to come back;
  • Penal Code 484 PCpetty theft is stealing someone's property or services worth $950 or less and would usually be charged if the prosecutor can't prove intent;
  • Penal Code 487 PC – grand theft is stealing another person's property valued at $950 or greater.

What is a Civil Demand Letter?

Under California Penal Code 490.5 PC, business owners can send you a letter demanding that you pay them back for the stolen merchandise or face a civil suit, a separate action from the criminal case.

In most cases, civil demand letters are sent by a law firm retained by the businesses. These letters typically seek $500 in recovery costs and full restitution of the items.

What is a Merchant's Privilege and the Right to Detain?

California has a common law concept called "merchant's privilege," which is the right of store owners and employees to detain people they reasonably suspect of committing theft on their premises.

Penal Code 490.5 PC says, “(f) (1) A merchant may detain a person for a reasonable time for the purpose of investigating reasonably whenever the merchant has probable cause to believe the person to be detained is attempting to take unlawfully or has unlawfully taken merchandise from the merchant's premises.”

This law is sometimes called the “shopkeeper's privilege” and allows store owners and merchants to detain a customer if there is probable cause they committed Penal Code 459.5 PC shoplifting. The store owner's detention can only be for a reasonable time, and used solely to investigate a suspected shoplifting offense.

What Are the Penalties for Shoplifting?

Penal Code 459.5 PC shoplifting is a typical misdemeanor offense that carries a maximum potential penalty of:

  • Up to six months in the county jail, and
  • A fine of up to $1,000.

Notably, you might be eligible for a diversion program and get the charges dismissed after paying a fine, restitution, and completing community service hours. If you are charged with PC 487 grand theft felony, you face up to three years in state prison and a $10,000 fine.

Can Shoplifting Be Charged as a Felony?

Possibly. The prosecutor could decide to file shoplifting charges as a felony crime if you have a prior conviction for any of the following crimes:

  • A sex offense requiring sex offender registration;
  • A sex crime involving a minor under 14;
  • A sex crime involving force, violence, or threats,
  • A serious or violent felony punishable by life in prison or death;
  • Penal Code 191.5 PC gross vehicular manslaughter;
  • Penal Code 187 PC murder, attempted murder, or solicitation.

If convicted of felony shoplifting, the penalties include 16 months, two or three years in jail, and a fine of up to $10,000.

What Are the Defenses to PC 459.5 Shoplifting?

As noted, shoplifting charges require proving a criminal intent to steal the items from a store before entry. Perhaps we can argue they can't prove this element of the crime or that you decided to steal items after you entered the store.

Perhaps we can negotiate with the prosecutor to persuade them not to file formal criminal charges against you, known as prefiling intervention. Maybe we can show them their case is weak and would not result in a conviction.

Perhaps we can argue a mistake of fact defense if you simply forgot to pay for the items when leaving the store. Maybe you were distracted and did not intend to steal. There are other ways to resolve your shoplifting case without a criminal conviction, such as the following:

  • Diversion program - if accepted into a program, you will agree to abide by several conditions set by the court, such as paying restitution and community service house. Once completed, the case will be dismissed.
  • Informal diversion – you will plead guilty and agree to perform specific acts to avoid a guilty judgment. Once this agreement is made, the guilty plea stays until the agreed-upon acts are completed.
  • Civil compromise - this is an agreement between you and the business owner to repay them for any losses, which generally include the cost of lost or damaged merchandise and the cost of loss prevention. The business owner will agree not to prosecute the shoplifting case in exchange.

Many shoplifting cases are not prosecuted because it's only a misdemeanor and a low priority for police or prosecutors. There is also the fear of what could happen when a store employee attempts to stop the shoplifter.

In 2021, California lawmakers created a new felony crime related to shoplifting called “organized retail theft,” which occurs when two or more people act together to steal merchandise with intent to sell, exchange, or return it.  This new law does not apply to individuals. Contact us for a free case evaluation. The Hedding Law Firm has offices in Los Angeles, CA.

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