Shoplifting has become one of California’s most prevalent crimes, and recent changes in the law make it vital that you have the most informed and experienced representation possible. If you are a juvenile or an adult who has been involved in shoplifting in the San Diego area and find yourself in need of legal representation, contact us at San Diego Criminal Attorney for a Free Consultation.
We have a team of attorneys, backed by a dedicated legal staff, that can help you understand the law and your rights as a defendant for the crime of shoplifting.
Understanding the Law and Shoplifting
In 2014, California developed a specific statute for shoplifting, a crime previously covered only as general theft, and usually adjudicated as either petty theft or grand theft. (See the section below, entitled “Felony or Misdemeanor” for more on the difference between these two terms.)
Shoplifting is considered a form of theft – which can be defined as taking merchandise from a store or place of business without paying for it. Shoplifting is also known as larceny, which is when you take the property of someone else without their permission, and do not intend to return it. In other words, it causes a permanent loss.
Other names that one may encounter for this type of activity are retail theft and concealment of merchandise. Whichever term is used, they may all be considered under the broad description of shoplifting. Generally speaking, in order for shoplifting to occur, two elements must be present:
- the willful concealment of items that are offered for sale; and
2. an intention to deprive the items' rightful owner (i.e., a store or business) of the value of the items by taking possession of the items without paying for them.
In fact, California Penal Code 459.5(a) defines shoplifting in several important key terms:
- Shoplifting occurs when a person enters a commercial business with an intention to take property that is not theirs.
- This is known in the law as larceny.
- For the crime to be defined as shoplifting, the business establishment must be open during normal business hours.
- Additionally, all shoplifting crimes must involve the theft of property that is valued at $950 or less.
- Notice that the word intention is extremely important – a person can be guilty of shoplifting whether or not they actually take merchandise from a business, if they entered the store with the intent to take it.
Felony or Misdemeanor?
It is crucial to understand the difference in a misdemeanor charge and that of a felony. A misdemeanor is considered a crime of low seriousness, and a felony one of high seriousness. Each classification carries with it an appropriate level of punishment. A misdemeanor will result in less punishment – which can consist of fines and time in jail – while a felony will result in a greater degree of punishment, possibly including time in a state or federal penitentiary.
Misdemeanor offenses in California generally carry fines of up to $1,000 and jail sentences up to 364 days (one day shy of a year.) Felony convictions will carry one year or more of jail time, and can have fines of up to $10,000 or more.
Beyond the fines and time spent in jail, those convicted of felonies also stand to lose (at least temporarily) some of their civil privileges. Among these are the right to vote, the right to hold a professional license (such as teacher, nurse, dentist, doctor, lawyer, or real estate agent), and the right to own a firearm.
So, what makes the difference in a misdemeanor or a felony when shoplifting is the charge? The single most important factor under California law is the value of the merchandise that is involved in the charge. For amounts up to $950 in value, the charge is generally considered a misdemeanor; when the value of merchandise involved exceeds $950, felony charges can be considered.
- Eric and Samantha have been challenged by their peers to try to take some clothing from a local department store without getting caught. Samantha plans to cause a distraction in the store while Eric picks up a pair of pants and a shirt. Unfortunately, Eric is apprehended by a security guard as he exits the store, and Samantha is soon brought in with Eric to confront the store manager. The value of the clothing is $125 in total, so both Eric and Samantha are charged with the crime of “petty theft” – a misdemeanor in California.
- Jack enters a jewelry store and engages the clerk in conversation, asking to see a number of expensive bracelets. While keeping the clerk occupied in conversation, he slips one of the bracelets into his jacket pocket and later attempts to leave the store. He has been observed on video surveillance and is stopped outside the store by a police officer who has been alerted by security. The value of the bracelet is $1,200 and Jack is charged with “grand theft” – a felony charge in California.
One exception to the merchandise value guideline in determining a felony in California is the unlawful taking of a firearm. Even if valued at less than $950, shoplifting a firearm of any kind would result in a felony charge.
A quick overview of the applicable California criminal codes demonstrates the way charges may be defined. These links are offered for your further review:
- CPC Section 484 (this is the general theft statute)
- CPC Section 486 (this divides theft into grand theft and petty theft)
- CPC Section 487 (the definition of grand theft)
- CPC Section 488 (the definition of petty theft)
- CPC Section 489 (lists the punishments for grand theft)
- CPC Section 490 (lists the punishments for petty theft)
What Make Shoplifting Different?
Since shoplifting is defined as a subset of the more common crime of theft (or, as you may sometimes see it listed, larceny) it is helpful to know what actions make a crime specifically shoplifting.
A 2014 change to California law (listed in California Penal Code Section 459.5) adopted new definition for the crime of shoplifting. Among other details that the new definition pointed out, there was a significant shift in approaching all shoplifting crimes as misdemeanors. The intention was to give first-time offenders a bit more space in terms of serving jail time and paying costly fines. It was also intended to limit the possibility that a person could be tried and convicted of the same crime more than once.
Here are several key elements of shoplifting as delineated in the updated version of the code:
- Entering a commercial establishment – this is a business that operates for profit and the purpose of engaging in sales
- With the intent to commit larceny – all that is needed is intent; it can be irrelevant whether a person actually takes merchandise or not
- While the establishment is open during regular business hours – of course, entering a commercial establishment during other hours for the purpose of larceny would fall into a more serious category known as breaking and entering.
This change appeared, at first, to lessen the severity of a conviction on a shoplifting charge; however, it is important to note that shoplifting can still lead to a felony charge when the value of merchandise exceeds $950. The nature of the crime is then classified as burglary, which is considered to be a more serious crime and can carry a much larger penalty. Additionally, previous convictions can allow a more serious verdict, even under the new law’s definitions.
What Must a Prosecutor Prove?
Shoplifting – which we have already seen is a type of petty theft – can be proven when a prosecution team can demonstrate, most often through the testimony of store security officers, other eyewitnesses, and, in some cases, video evidence that a person took store property, altered (or even switched) merchandise price tags and then attempted to leave the store without providing any payment.
As noted above, a person can be detained and convicted for the intention of shoplifting. You can be found guilty, even if you don’t succeed!
Building a Shoplifting Defense Case
While shoplifting may be considered by some as a “lesser” crime, its impact on the record and future welfare of a teenager or adult who is charged with the crime can be long-lasting and quite devastating. It is important to know some of the ways that a shoplifting charge can be defended in court.
- Lack of Intent
There are actually a number of people each year who are accused of shoplifting when they had no intention of taking the property of a commercial establishment. Due to distraction or some other factor, it is possible for a person to wander off the premises of a store with merchandise that they have not paid for.
For example, a young mother with children could place an item into her purse while shopping, fully intending to pay for it later, and need to take a child away from the store in order to attend to it or provide discipline.
Or, a young man could get a phone call while shopping, absentmindedly place an item into his pocket and wander off the premises while carrying on a conversation.
In situations like these, an experienced attorney could help to show that the accused person lacked the intent to steal an item and simply made a mistake.
- Factual Innocence
Another factor to be considered in a shoplifting case is whether or not the accused is factually innocent. It may be the case that they did not actually take an item unlawfully; people are arrested by mistake all the time.
There are cases of mistaken identity, where a person resembles another person who committed a crime; perhaps they were wearing similar clothing at the time.
There are also incidences of over-zealous security personnel or police officers, who sometimes rush to judgment and accuse a person falsely.
- Police Misconduct
One of the most unfortunate defenses to employ is when an officer of the law is actually engaged in a form of misconduct, perhaps based on age or racial bias. In such cases, officers or security personnel might actually plant evidence, convince an accused person to confess to a crime they did not commit, or violate a person’s Fourth Amendment right against an unlawful search or seizure.
An important strategy that a defense lawyer may recommend if misconduct is suspected is to file a Pitchess motion (defined in California Evidence Code Sections 1043-47.) The name of statute comes from a California Supreme Court decision known as Pitchess v. Superior Court in 1974, which sought to balance the need of a criminal defendant to know all the evidence relevant to his or her case, against the right of a police officer to maintain the privacy of his or her personnel file.
The bottom line for a defendant is that, if granted, a Pitchess order allows the attorney and client to see if a particular officer has a history of complaints filed for misconduct.
Resolving a Shoplifting Case Before a Trial
There are a number of options for resolving a shoplifting case before an actual trial occurs; these can be quite advantageous to those facing shoplifting charges – especially first-time offenders.
- Convert to an Infraction
If the value of merchandise that has been taken is low and the merchant, prosecutor, and judge are in agreement, a shoplifting charge can be reduced to an infraction, which is generally far less serious on a person’s record. An infraction usually indicates an amount of $50 or less was involved in the crime, and the maximum fine is $250. There is no probation involved with an infraction.
- Enter a Pre-trial Diversion
In cases where the accused is under the age of 24, especially for a first-time offender, many courts will consider a diversion program where the defendant agrees to perform community service and attend an anti-theft instruction course. This usually happens when the amount involved in the case is less than $300.
- Plead a Lesser Charge
There are cases where prosecutors will consider allowing a defendant to plead a lesser charge, such as trespassing (defined in Penal Code Section 602) which would allow the defendant to avoid a crime which would have more serious long-term effects, especially on employment.
- A Civil Compromise
One final consideration, for a case involving a first-time offender, is the settlement of the case in what is known as a civil compromise. This can occur when the damages for the crime have been fully repaid, the victim is willing to forgo additional prosecution, and all of the parties are in agreement.
A civil compromise is always offered at the discretion of the court and is not guaranteed as an outcome, even if you have paid.
Civil compromise is described more fully in California Penal Code Section 1378.
What to Do If You Are Accused of Shoplifting
Perhaps the single most important thing a person accused of shoplifting should do is to seek out professional help in understanding your rights and obligations under California law. In order to preserve these rights, many defense attorneys agree that it is best not to communicate with other persons – including store personnel, officers of the law, or even family or friends – until representation has been attained.
A series of “do nots” is helpful to remember when accused of any crime, including shoplifting:
- Do not panic – remaining calm is always in your best interest.
- Do not talk to anyone – especially before you consult an attorney.
- Do not consent to a search – while store personnel may let you go if they can recover any merchandise you may have in your possession, a search can also be considered an admission of guilt.
- Do not hesitate to ask for an attorney – you do not have to be arrested to call for legal representation.
- Do not believe that, just because you have never been in trouble before, shoplifting is not a serious charge. It is!
Finding A San Diego Shoplifting Attorney Near Me
The most important right that any person accused of a crime should want to preserve is the right to their best possible future. Shoplifting is a crime that can stay with a person – especially a teenager – for a very long time. A conviction for shoplifting can affect future educational endeavors, potential employment opportunities, and one’s overall lifestyle. One should consider carefully the most effective way to build the best possible case when accused of shoplifting.
This begins by searching for a reputable and experienced shoplifting defense attorney. Here in the office of San Diego Criminal Defense Attorney, we are prepared to take your call, answer your questions, discuss your options with you, and help you to build the best possible case for your defense.
Do not hesitate to call us at 619-880-5474 and schedule a free consultation. Our experience with criminal defense of all types in the San Diego area is one thing that you will immediately have on your side. Don’t wait!