California is a hub of various high-end stores in America. These stores are often a target of temptations for many shoplifters. The state of California does not have a distinct law for shoplifting. However, the offense is still punishable by law because it is under the umbrella of other general theft laws. These laws can be either those on petty theft or grand theft. The difference between the two is in the value of items taken.
The offense of shoplifting constitutes the unlawful taking, stealing, or carrying away property belonging to another without their consent. When a person enters a shop in the pretense of shopping, he or she may take something and conceal it in their clothing or bag. This is termed as shoplifting theft. A conviction on the offense can result in severe consequences depending on the charge faced. When you are accused of shoplifting, you need a lawyer to fight these allegations for you. At The Los Angeles Criminal Defense Attorney, our laws are experienced in theft charge defenses and can help you with your case.
Defining Shoplifting According to the Law
The offense of shoplifting laws can be found under PEN 459.5. To best define this offense, some aspects of the crime must be factual. These elements include:
- Entering a business premises
- When the business is open and running during business hours
- And their purpose is taking items valued at $950 or below
Shoplifting centers on a person entering a shop to take an item unlawfully. For instance, Mary, while walking past a clothing store, notices a scarf she likes and cannot afford it. She decides she wants it anyway and will get into the shop and steal it. When caught, she will be charged with shoplifting because that was her motive for getting into the store.
On the other hand, a person may have entered a shop to purchase a few items. While there, the person notices something they like and doesn't have the money for it. They decide they must have it and proceed to take it and conceal it in their clothes or bag. This person, when caught, will be prosecuted on petty theft and not shoplifting.
Differentiating between Burglary (PEN 459) and Shoplifting (PEN 459.5)
Burglary, as defined under PEN 459, is when a person enters a commercial or residential building intending to carry out a felony, petty theft or grand theft when inside. The definition of shoplifting falls under burglary or is another form of burglary. During shoplifting, the perpetrator enters an open premise intending to commit petty theft.
Previously, prosecutors charged shoplifters with a burglary, which is a more severe offense that can be prosecuted as a felony. However, the passing of Proposition 47 changed all that when penalties for many crimes were reduced. Based on this, a penal code to deal with shoplifting was introduced as PEN 459.5. It, therefore, means shoplifters will no longer be prosecuted on burglary charges but shoplifting as a separate offense.
Getting your Burglary Charges Reduced to Shoplifting
The offense of burglary carries more severe penalties compared to that of shoplifting. Often, individuals charged with burglary will, through their lawyer, seek to have their charges reduced. Before the passing of Proposition 47, shoplifters were charged with second-degree burglary.
Proposition 47 makes a provision for people previously charged with burglary under shoplifting circumstances to get their charges reduced. Whether the person has already served their time or is serving it currently, they can apply for their sentences to be that of misdemeanor shoplifting.
Once the application is granted, the time left in a person’s sentence can be reduced or erase the felony status in their record. If a person feels they are eligible to seek re-sentencing according to Proposition 47 from burglary to shoplifting charges, a criminal lawyer will help.
Check Fraud in Relation to Shoplifting
Typically, shoplifting for most people involves a person getting into a business establishment and walking away with an item not paid for. However, there are individuals who walk into a bank with a bad check of $950 or below to cash or commit check fraud under PEN 476.
After the passing of Proposition 47, the courts in California disagreed on whether the act of entering a bank to carry out a petty theft offense of cashing a forged check constituted shoplifting. However, in 2017, the California Supreme Court resolved the debate and made the act a shoplifting offense punishable under PEN 459.5. As a result, those that face the charges of intentionally cashing a forged check for $950 or less will face a lesser charge of shoplifting and not burglary.
Shoplifting Penalties in California
Shoplifting offenses typically are prosecuted as misdemeanors. When a person is convicted for this offense, they are likely to face various penalties. The possible penalties include:
- The defendant may be sentenced to summary or informal probation
- The defendant may face county jail time of not more than six months
- The defendant may be charged a cash fine not exceeding $1,000
Some shoplifters can be charged with felony offenses instead of the standard misdemeanor charges. For a defendant to face felony charges on a shoplifting offense, they must have prior crimes that include:
- Prior convictions on sex crimes that require one to be registered as a sex offender
- A previous violent sex crime under the law of California. This means the crime was committed forcefully or the defendant used violence and threatened the victim with injuries
- Having a prior conviction on a sex crime with a minor below 14 years
- Having a prior conviction on murder attempted murder as found under PEN 187
- Having a prior conviction on gross vehicular manslaughter while intoxicated under PEN 191.5
- Having been convicted of soliciting to commit a murder
- Having a prior conviction on assault with a gun or an assault on a firefighter or peace officer
- Having been convicted of possessing a weapon of mass destruction
- Having a prior record on a felony that is punishable by death or life imprisonment
According to PEN 459.5, a shoplifting defendant with any of the above priors will face felony charges under PEN 459.5 violations. The penalties for a felony conviction are more severe than those of a misdemeanor conviction. These penalties include:
- A sentence to serve formal or felony probation
- A county jail time of sixteen or twenty-four or thirty-six months
- A cash fine of not more than $10,000
Legal Defenses for Shoplifting Offenses
Often, shoplifters have no priors, and a conviction on the crime is often embarrassing and devastating to both their professional life and personal life. Fortunately, with a criminal defense lawyer, various defense strategies can be used to fight these allegations. Some of the common defense strategies include:
The Defendant had no Intent
One of the critical elements in a shoplifting offense is the intent of the perpetrator. The defendant to be accused of shoplifting, the prosecution must prove they got into the shop to steal. The time the act is performed is also valuable. A defendant needs to have had the intention to commit the misdemeanor by the time they got into the business establishment. If the perpetrator decided to steal after being inside the establishment, they could not be convicted of shoplifting.
The Defendant is Innocent of the Crime
The best way to fight allegations of shoplifting is by proving you did not commit the offense. Many innocent people have been previously charged with the crime mistakenly. A person can be mistakenly identified as the one that committed the crime because they wore similar clothes to the shoplifter. You may also have a resemblance to the person reported to have committed the offense. There have been cases where a person is accused of the crime falsely. This can be by an employee or the store owner.
This makes it essential for a person to have a lawyer that will fight against these allegations. A skilled lawyer knows the right questions to ask and can pick up inconsistencies in the story being given. Do not allow yourself to be wrongly convicted by not hiring a lawyer. Evidence may seem convincing, but a lawyer can analyze it and find weaknesses in the allegations.
When your lawyer convinces the court of your innocence, your charges will be dropped. Even when a person is innocent, it is easy for them to be convicted of the offense wrongly. Fabricated evidence can be damning without an attorney to see through it by asking the right questions.
A shoplifter can negotiate with the store owner to pay them for the goods taken and any damages to the merchandise. Through your lawyer, a meeting can be arranged where the negotiations take place, and the store owner drops charges against you.
California only allows civil compromises on misdemeanor cases. However, despite a civil agreement between the store owner and the perpetrator, the prosecutor can still prosecute the case.
A civil compromise is only suitable when charges have not been preferred against the perpetrator. Even when the store owner agrees to a civil settlement, they can be subpoenaed to testify against the defendant.
Sometimes, police officers are tired when responding to shoplifting cases. Some could be overworked or inexperienced. Others may have racial biases against some suspects. Because of this, they can find themselves conducting things that will lead to police misconduct. These include:
- Fabricating or planting evidence
- Subjecting the defendant to unlawful searches
- Coercing the defendant to confess to the crime
When there is suspicion of police misconduct in a shoplifting case, your lawyer will file a motion on it known as a Pitchess motion. If the court grants the motion, it allows for investigations into the conduct of the officer. This is necessary to see if there have been similar complaints before on him.
If your lawyer succeeds in showing that the officer periodically engages in misconduct, the case against the defendant can be dismissed.
Related Offenses to Shoplifting
The offense of shoplifting, as found under PEN 459.5, is similar to a few other theft offenses in California. When a person is accused of taking property or items belonging to another person unlawfully, they will be charged with either petty theft PEN 488 or grand theft PEN 487.
1. Grand Theft – PEN 487
The law defines grand theft as the illegal taking of property or items belonging to another person whose value is $950 or over. When a person is convicted of grand theft charges, it can have serious repercussions both personally and professionally. Grand theft in California allows for a person to be charged with theft even when they have made mistakes that seem minor.
Grand theft can be charged for various reasons. When a person steals thousands from their employer, he or she will be charged with grand theft. Similarly, when a person breaks into another person’s house and takes goods valued at thousands of dollars, they will also be charged with grand theft.
Grand theft is similar or related to shoplifting offense in California. When a person shoplifts in a high-end store, he or she will likely face grand theft charges. The reason for this is that most high-end stores are likely to stock products whose value is over $950. When a person shoplifts an item valued at $ 949, he or she will be charged with shoplifting offense. However, if the same person shoplifts an item priced at $951, they will face grand theft charges.
Penalties for Grand Theft
In many instances, grand theft is a wobbler offense in California. If misdemeanor charges are brought against an offender, a conviction will lead to possible jail time, not exceeding one year.
A felony conviction, on the other hand, will see a defendant face possible imprisonment of sixteen, twenty-four, and thirty-six months.
Possible Legal Defenses for Grand Theft
When one is facing theft charges, they must involve a lawyer to defend them against the allegations. A lawyer can discuss with the prosecutor for you to be charged with a lesser offense of shoplifting or petty theft. Similarly, an experienced lawyer can analyze the evidence by the prosecution and come up with various strategies to help you overcome the allegations.
Some of the common defense strategies your lawyer may use include:
The Defendant had no Intention of Stealing
One of the critical elements a prosecutor must prove for one to be convicted of this offense is the intention of the defendant. If your lawyer can argue that you had no plan to steal the property or item, then you cannot be found guilty of the offense.
The Supposed Stolen Item Belonged to the Defendant
If the defendant had reason to believe that the object belongs to them, then they cannot be convicted of grand theft charges. With the help of your lawyer, you can demonstrate why you believed the item or property to be yours. If the court is convinced of this defense, then you cannot be convicted of grand theft.
The Owner of the Property or Item gave the Defendant Consent to Take it
When an item is taken with the permission of the owner, then it is not stolen. You must produce evidence through their lawyer to show that the other party consented to your taking it. If the consent was issued by someone else and not the supposed owner, you must show who did. Equally, you must convince the court why you believed the person that gave consent was the actual owner. If this argument is accepted in court, then you will not be found guilty of the crime.
False accusations are common in criminal cases. A person can accuse you of the offense falsely if they have a vendetta against you. A colleague at work jealous of your promotion or wanting to cover their mistakes may accuse you of the crime falsely. Other times a person may be mistaken from the one that took the item or property.
With evidence, you can argue the case, and if your argument is convincing enough, the charges against you can be dropped.
Grand theft offense can be prosecuted or categorized in different crimes. These offenses include:
- Larceny – This offense happens when a person carries a physical item belonging to another person. Larceny is defined by when a person takes possession of another’s property, had no permission from them, and they intended to deprive the owner of its use.
- Grand theft by false pretense – A person is charged with this offense when they intentionally deceive another person to take possession of their item. Additionally, the only way the other person allowed you to take ownership of their property is because they relied on your lies to make a decision.
Proving Grand Theft by False Pretense
To be convicted of the offense, the prosecution must show that a person though false pretense, gained property belonging to another. This, they may show by producing a written document from the accused person such as a fake, forged check, or a contract. This writing or written document must be proven to have been written or signed by the accused person. The prosecutor is also expected to produce testimony from two witnesses in the minimum or one testimony accompanied by other evidence.
These requirements are necessary for grand theft matters, especially where a person is accused of using false pretenses to obtain something. Many business transactions can result in a party changing their mind and deciding to blame the other person for grand theft. For the charge to stick, one must produce evidence that the accused person lied to them and obtained their goods.
The penalties for a person accused of this offense are similar to those of grand theft.
Grand Theft Using a Trick
In defining grand theft where the accuser used tricks, it is where a person obtains property belonging to another knowingly. In doing so, the person used deceit and fraud. The accused person had the intention of depriving the owner of the property of its pleasure.
In grand theft using a trick, the property owner never intends for the person to own the property, but they can possess it. In grand theft by use of false pretense, the owner usually hands over ownership of the property to the person that took it.
2. Petty Theft - PEN 488
Petty theft, just like shoplifting, is charged when the value of the property taken is $950 or below. Petty theft charges are prosecuted as misdemeanor offenses. A conviction on these charges will have the defendant face possible imprisonment in a county jail for not more than six months. The defendant can also be charged a fine not exceeding $1,000 or be sentenced to both penalties. A judge can also sentence the defendant to informal or misdemeanor probation instead of jail time.
Possible Defenses in Petty Theft Charges
Facing a theft charge, it is always best for the defendant to hire a criminal attorney to represent them. With the help of a lawyer, several defense strategies can be applied to fight the offenses. These include:
- The defendant had permission from the owner to take the property.
- The defendant did not steal the property or item, but they borrowed it from the owner
- The defendant was unlawfully searched and charged with the offense
3. Trespassing – PEN 602
Trespassing is another offense related to shoplifting. A person is charged with this offense when they enter into the property belonging to another. This is usually without the person's consent. Trespassing and shoplifting often overlap. Typically, for a person to be charged with shoplifting, they must have entered the store during working hours and took something.
Shoplifting charges can sometimes be filed where the only evidence available is the hostility of the store’s owner towards the defendant, and they wanted the defendant out of the shop. The prosecutor must have strong evidence to convict a defendant of shoplifting. However, where there is no sufficient evidence, the defendant may face lesser charges of trespassing.
Find a Los Angeles Criminal Lawyer Near Me
A conviction on a shoplifting offense can be both embarrassing and detrimental to a person’s life. The penalties a person is likely to receive can be severe for the crime. To avoid being convicted or facing steep penalties, it is vital to have a criminal lawyer to fight for you. At the Los Angeles Criminal Defense Attorney, we are a team of dedicated attorneys committed to fighting criminal charges against our clients. Call us at 310-564-2605, and let us fight these allegations on your behalf.