California Law: Shoplifiting

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Most people think of shoplifting as a crime, but a much less serious crime than burglary. But California shoplifting laws did a curious dance with burglary for a few years. This was finally brought to a screeching halt by the passage of Proposition 47 in 2014.

History of Shoplifting Law in California

Shoplifting in California, like shoplifting anywhere, involves taking merchandise from a store without paying for it. For some time, shoplifting was charged in California as the crime of burglary under Penal Code Section 459.

California defines the crime of burglary as entering any residential or commercial building with the intent to commit a felony, grand theft or a petty theft inside. Prosecutors noticed that shoplifting fit within this definition and so they charged shoplifting activity as a burglary, which is a felony.

This all changed in 2014 when the voter initiative Proposition 47 was passed by California voters. It added Penal Code Section 459.5 to the California statutes that specifies that someone who commits the crime of shoplifting can be charged only under Penal Code 459.5, not with the felony charge of burglary.

California Shoplifting Laws

California shoplifting laws as found in Section 459.5 of the Penal Code make it a crime to shoplift, defining the elements of the offense as: Entering a commercial establishment while that establishment is open during normal business hours and with the intent to steal property that is worth $950 or less.

So, if Jan Doe enters a Target store intending to steal some makeup and is caught doing it, Jan can be charged with shoplifting. But what if Jan doesn't come into the store with that intent, but decides later while in the store to slip the makeup into her pocket? That is not shoplifting under Penal Code Section 459.5. It would likely constitute petty theft, however.

Petty Theft in California

In fact, the separate crime of shoplifting has a lot in common with the California crime of petty theft, which involves stealing property or money valued at $950 or less. Since the elements of petty theft do not include entering a store with intent to steal, it's the easier crime for prosecutors to prove. As such, many shoplifting offenses are charged as petty theft in California.

Penalties for Shoplifting in California

Shoplifting is a "wobbler" offense in California, which means that a prosecutor can charge it as a misdemeanor or a felony. Misdemeanors are less serious crimes with less serious penalties. Most of the time, shoplifting charges in California are charged as Penal Code Section 459.5 misdemeanors.

When charged as a misdemeanor, shoplifting can carry punishments of misdemeanor probation, up to six months in county jail and/or a fine of up to $1,000. A charge of petty theft is also a misdemeanor in California, and these same penalties apply.

Shoplifting Can Be Charged as a Felony

If a shoplifter has a criminal record of violent or reprehensible offenses, the prosecutor has the discretion to charge the shoplifting offense as a felony. This is a much more serious stain on a person's record and carries greater punishment.

One type of prior conviction that will bump a shoplifting offense up to a felony is a sex crime. This includes any sexually violent offense, sex crime against a child under the age of 14, or any offense that requires the person to register as a sex offender. Other convictions that cause a shoplifting offense to be charged as a felony include:

  • Murder, attempted murder or solicitation to commit murder.
  • Gross vehicular manslaughter while intoxicated.
  • Solicitation to commit murder.
  • Assault with a machine gun on a peace officer or firefighter.
  • Possession of a weapon of mass destruction.
  • Any serious and/or violent felony that is punishable by life in prison or death.

If someone is convicted of the felony charge of shoplifting, they can face punishments of felony probation, 16 months to three years in jail and a fine of up to $10,000.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.