Under Penal Code 459.5 PC, you commit shoplifting if you enter a commercial establishment during regular business hours with the intent to steal merchandise valued at $950 or less. Shoplifting is a misdemeanor offense punishable by probation, fines, restitution to the victim, and up to 6 months of jail time.
The full language of the code section reads:
459.5. (a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.
(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.
- going into a department store with the intent to steal a $700 necklace.
- entering a bookstore with a plan to buy one book and sneak three others into a backpack.
- walking into a convenience store with the idea of stealing a six-pack of beer
There are several legal strategies that tend to be effective in a shoplifting case. Some of these include:
- working out a civil compromise,
- completing a pretrial diversion program,
- showing that there was a mistake of fact, and
- showing that you only formed the intent to steal after entering a business (for example, an after-entry intent).
The offense is punishable by:
- custody in county jail for up to six months, and/or
- a maximum fine of $1,000.
A judge can award misdemeanor (or summary) probation in lieu of jail time.
Our California criminal defense attorneys will explain the following in this article:
- 1. What are the California shoplifting laws?
- 2. What are the best defense strategies against 459.5 PC charges?
- 3. What happens when I get caught shoplifting for the first time in California?
- 4. Are there immigration consequences?
- 5. Can I get my conviction expunged?
- 6. Can you legally detain a shoplifter?
- 7. How did Proposition 47 affect the crime of shoplifting?
- 8. How long after shoplifting can I be caught?
- 9. Related offenses
- 10. Are some cities no longer enforcing shoplifting laws?
1. What are the California shoplifting laws?
California shoplifting laws make it a crime to steal goods from a commercial establishment. A prosecutor has to prove the following in order to convict you of a 459.5 PC charge:
- you entered a “commercial establishment,”
- you entered that establishment while it was open during normal business hours, and
- you did so with the intent to steal property worth $950 or less.1
A “commercial establishment” is a place of business established to exchange goods or services.2
Example: Mario goes to an electronics store planning to steal a new “smartphone” worth about $600. He enters the store and nervously finds the smartphone aisle. A guard observes Mario and thinks he is acting suspicious. He follows him and catches Mario slipping a phone into a hidden pocket in his jacket.
The district attorney may charge Mario under California’s shoplifting law.
Note that a prosecutor does not have to prove that you left a store with merchandise. This means you can be found guilty of shoplifting if a guard catches you red handed in the store.3
Example: In the case of Mario, note that Mario did not have to leave the store with the phone before the guard could confront him. Guilt can occur without actually leaving a store with the stolen property.
2. What are the best defense strategies against 459.5 PC charges?
Defense lawyers draw on several legal strategies in attacking or resolving shoplifting charges. These include showing that:
- you repaid the business via a civil compromise.
- you performed certain acts under an informal diversion program.
- you are innocent because you were mistaken about certain facts critical to the case.
- you developed an intent to steal after entering a business.
2.1. Civil compromise
A civil compromise in a shoplifting case is when you agree to repay the victim business for any losses. In return, the business agrees not to seek prosecution. Losses to the business may include:
- lost or damaged merchandise, and
- the cost of loss prevention.
2.2. Informal diversion
Informal diversion is when you plead guilty and agree to perform certain acts to avoid a guilty judgment. Once this agreement is made, the guilty plea is stayed until the completion of the agreed-upon acts.
Example: Nia is charged with Penal Code 459.5 PC. She appears before the judge and the judge offers her entry into an informal diversion program. The judge asks her to complete 25 hours of community service and repay the business for the stolen goods. Nia agrees and enters a plea of guilty. She is then given 6 months to complete her hours and repay the business.
Nia completes everything in the given time period. She returns to court and the judge finds that she has completed everything to the court’s liking. Her judgment of not guilty is not entered. Nia receives no criminal charges on her record.
2.3. Mistake of fact
Mistake of fact is when you misunderstand certain facts that disprove an element of the crime. In Penal Code 459.5 cases, this defense is often used to show that you did not have the intent to steal.
Example: Doug is shopping in a clothing store. He sees a sweater on the ground that looks like one that he owns. He grabs it thinking it fell out of his backpack and then puts it in his bag. The sweater actually belongs to the store. A security guard sees Doug and stops him for shoplifting.
Here, Doug is not guilty of a crime. He was mistaken that the store’s sweater was actually his. This mistake means he did not have any intent to steal. Doug is innocent since intent is one element that has to be proven for a shoplifting charge to succeed.
2.4. After-entry intent
After-entry intent covers the situation where you do not have the intent to steal when you first enter a business. Rather, you decide to steal something once inside a store. This can work as a defense since shoplifting requires you to have an intent to steal upon entering a shop.
Note, though, that even with this defense, you might still be found guilty of petty theft.
3. What happens when I get caught shoplifting for the first time in California?
- custody in county jail (as opposed to state prison) for up to six months, and/or
- a maximum fine of $1,000.4
As discussed above, you may be eligible for a diversion program where the charge gets dismissed once you complete various court orders. Examples include:
- paying a fine,
- paying restitution to the retail establishment,
- completing community service hours, and/or
- taking an anti-theft class
If you have prior convictions of shoplifting, you are more likely to be sentenced on the higher end of the penalty range.
Merchants may also make a civil demand under Penal Code 490.5 PC.
4. Are there immigration consequences?
A conviction under this statute will generally not have negative immigration consequences.
California law says that some criminal convictions can result in deportation.5
For example, a conviction of a crime involving moral turpitude may produce this result.
But a PC 459.5 conviction will not make you deportable.
5. Can I get my conviction expunged?
You can get an expungement if convicted of shoplifting.
An expungement is favorable since it erases many of the hardships of a conviction. And having a clean criminal record greatly increases your employment prospects.
A judge will grant an expungement if you successfully complete:
- probation, or
- your jail term (whichever was imposed).
6. Can you legally detain a shoplifter?
Loss prevention officers – who are employed by many stores to prevent shoplifting – can do the following if they believe you are stealing store property:
- Ask to look in your bag (but you can refuse),
- use reasonable force to detain you,
- detain you for a reasonable time, and
- require you to stay with them until police officers arrive.
Note that you are not required to speak with a loss prevention officer. If suspected of shoplifting, it is best for you to say nothing at all until you speak with a lawyer.
Also note that loss prevention officers are not law enforcement officers – they are private security guards.
7. How did Proposition 47 affect the crime of shoplifting?
Proposition 47 was passed in California in 2014. The initiative is also known as the Reduced Penalties for Some Crimes Initiative.
Prop 47 added shoplifting, section 459.5 to the California Penal Code. Prior to the initiative, shoplifting was charged as burglary – which can carry felony penalties.
Proposition 47 contains a provision that applies when:
- you were previously convicted of burglary (prior to the new law), but
- you actually committed the crime of shoplifting.
The initiative allows you to apply for re-sentencing. If approved by the court, your sentence will be reduced from felony burglary to misdemeanor shoplifting.
8. How long after shoplifting can I be caught?
California prosecutors have one year after the alleged shoplifting to press charges against you. Learn more about criminal statutes of limitations in California.6
9. Are there related offenses?
There are three crimes related to shoplifting. These are:
- burglary – PC 459,
- petty theft – PC 484, and
- grand theft – PC 487.
9.1. What is the charge for burglary in California?
Penal Code 459 PC is the California statute that defines the crime of burglary:
- you enter any structure, room or locked vehicle, and
- you do so with the intent to commit a theft or felony crime once inside.
Shoplifting is a sub-set of burglary where you:
- enter an open business, and
- do so with the intent to commit petty theft (or the stealing of an object worth $950 or less).
Note that shoplifting only applies to petty theft, which is a misdemeanor. Burglary, on the other hand, can be charged with an intent to commit a felony.
9.2. What is the charge for petty theft in California?
Penal Code 484 PC is the California statute that says petty theft is:
- stealing someone’s property or services, and
- that property or services are worth $950 or less.
The main difference between petty theft and shoplifting is that:
- shoplifting only involves “stealing” from an open business, and
- petty theft can involve “stealing” under any other situation or environment.
For example, you can be charged with petty theft if you take a neighbor’s shovel. But no shoplifting charges could get raised in this scenario. This is because you were not taking something from an open business.
Note that if the allegedly stolen items were valued at $50 or less – and if you have no prior theft convictions – then the prosecutor has the discretion under California Penal Code 490.1 PC to charge petty theft as only an infraction instead of a misdemeanor. An infraction carries a fine of up to $250.
9.3. What is the charge for grand theft in California?
Penal Code 487 PC is the California statute that defines the offense of grand theft:
- taking someone else’s property, and
- that property is worth more than $950.
There are two main differences between shoplifting and grand theft. These are:
- shoplifting is limited to taking something from an open business, and
- grand theft involves the taking of property worth more than $950.
10. Are some cities no longer enforcing shoplifting laws?
In San Francisco especially, many shoplifting crimes are going unprosecuted because:
- shoplifting is only a misdemeanor and therefore not a high priority for police or prosecutors; and
- store clerks are afraid they will be injured or killed if they try to stop the shoplifters.
In 2021, California lawmakers tried to incentivize law enforcement into taking shoplifting more seriously by creating a new felony crime: Organized retail theft.
Organized retail theft occurs when:
- two or more people act in concert to steal merchandise
- with the intent to sell, exchange, or return the merchandise.
However, this new crime does not apply to
- lone shoplifters or
- people who steal merchandise for themselves,
who still comprise the majority of shoplifting cases.7
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
Our criminal defense lawyers have offices in Los Angeles, San Diego, San Francisco, and elsewhere throughout the state. We defend against all types of criminal charges, from DUI and drug crimes to property crimes and violent crimes.
To learn of similar laws in Nevada and Colorado, please see our articles on:
- California Penal Code section 459.5 PC. See also People v. Root (2016) 245 Cal.App.4th 353; People v. Sherow (2011) 196 Cal.App.4th 1296; California Jury Instructions CALCRIM 1703.
- People v. Smith (2016) 247 Cal.App.4th 717.
- People v. Gonzalez (2018) 6 Cal.5th 44. In Gonzalez, the court said: “shoplifting is the entry into a business with an intent to steal, rather than as the taking itself.”
- California Penal Code 459.5 PC. See also California Penal Code 19 PC.
- 8 USC 1227 – Deportable aliens.
- California Penal Code 802 PC.
- California Penal Code 490.4. AB-331 (2021). 20-year-old charged in killing of Rite Aid clerk who confronted shoplifters in Glassell Park, ABC-7 (July 29, 2021). Organized Retail Theft Program, California Highway Patrol. Jason L. Riley, San Francisco Has Become a Shoplifter’s Paradise, Wall Street Journal (October 19, 2021).