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When does Shoplifting in California become Burglary?

Posted by Neil Shouse | Nov 11, 2013 | 0 Comments

Normally, shoplifting merchandise $950 or less is treated as the crime of petty theft in California. Petty theft is a simple misdemeanor carrying only up to 6 months in jail.

But police and prosecutors will often try to hit shoplifters with the more serious charge of burglary under Penal Code 459. Burglary is a “wobbler” meaning it can be filed as a misdemeanor or even a felony. As a misdemeanor it carries up to 1 year of jail. As a felony it carries up to 3 years of California state prison.

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However, not every case of shoplifting amounts to the California crime of burglary.

It's only a burglary if you enter the store intending to steal merchandise. That criminal intent must have already been formed at the time of entry.

Consider an example. I walk into Macy's just planning to browse. Once inside, I spot a $300 pair of True Religion Jeans that I just fall in love with. But the jeans are way beyond my price range. So I spontaneously decide to stick them inside my jacket and flee the store without paying.

No doubt I just committed the crime of petty theft. But I did not commit burglary. It's not a burglary because I did not yet have the intent to steal at the time I actually entered the store.

Now we can easily tweak the story to make it a burglary.

Suppose I've been dreaming of a new pair of True Religions for some time. One day I walk into Macy's with an empty backpack planning to steal a pair. This is burglary. It's burglary because my criminal intent had been already been formed at the time of entry.

This begs the question: How do loss prevention, police and prosecutors prove that I entered with the intent to steal? Because to make their case in court, they must prove beyond a reasonable doubt that a shoplifter had this intent at the time of entry. And “intent” as such is usually something that lay quietly inside the shoplifter's head.

Prosecutor's will point to two sorts of evidence: confessions and/or surrounding circumstances.

Confessions: When shoplifters are detained, loss prevention and cops will often try to get them to admit they entered the store intending to steal. This may take the form of

• an oral confession,

• a signed statement, or

• signing a form already filled out.

Surrounding circumstances. The shoplifter may have left a trail of clues, such as

• entering the store with large empty bags from another store,

• casing the store several times, then returning for the steal, or

• taking lots of expensive items off the shelves and racks, even though the shopper doesn't presently have a means of paying for them (such as cash or valid credit cards).

But the reality is that proving the burglary charge can be more challenging than proving the theft or shoplifting charge. Often prosecutors will tack on the burglary charge just to gain more leverage in plea negotiations. Then they'll offer to dismiss the burglary in exchange for a plea to petty theft. (Refer to our articles "Five things to know about California burglary charges and Should I be read my Miranda Rights if I am detained for shoplifting in California?)

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About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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