When does “Shoplifting” in California become a “Burglary”?

Posted on February 8, 2022

Normally, shoplifting merchandise valued at $950 or less is treated as a simple misdemeanor under California Penal Code 459.5 PC. The crime is punishable by custody in county jail for up to six months. But police and prosecutors will often try to hit shoplifters with the more severe charge of burglary under Penal Code 459 if the offender intended to steal merchandise valued in excess of $950 before entering the store.

1. What is shoplifting per PC 459.5?

Penal Code 459.5 PC is the statute that makes shoplifting a misdemeanor offense in California. This section defines shoplifting as entering an open business with the intent to steal merchandise worth $950 or less.¹

The crime is punishable by probation, fines, restitution, and up to 6 months in jail.

2. When does California law say that shoplifting is burglary?

Per PC 459.5, “Any other entry into a commercial establishment [not specified above] with intent to commit larceny is burglary.²

Burglary is a more severe crime than shoplifting. The offense is a “wobbler,” meaning it can be filed as a misdemeanor or even a felony. As a misdemeanor, it carries up to 1 year in jail. As a felony, it carries up to 3 years of California state prison.³

How do loss prevention, police, and prosecutors prove that I entered with the intent to steal?

Prosecutors must prove that a defendant had an intent to steal before entering a store for convictions of both shoplifting and burglary.

Prosecutors will point to two sorts of evidence to prove this. These are confessions and/or surrounding circumstances.

As to the former, 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.

As to 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 charges 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?)

Legal References:

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.