California Penal Code § 459.5 PC defines the crime of “shoplifting” as entering a commercial establishment during regular business hours with the intent to steal merchandise valued at $950 or less. PC 459.5 shoplifting is a misdemeanor punishable by:
- restitution to the victim, and
- up to 6 months of jail time.
- going into a mall 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
The full language of the code section reads:
PC 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.
Several legal strategies 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?
- 2.1. You repaid the business via a civil compromise
- 2.2. You performed certain acts under an informal diversion program
- 2.3. You are innocent because you were mistaken about certain facts critical to the case (“mistake of fact”)
- 2.4. You formed no intent to steal until after you entered the establishment (“after-entry intent”)
- 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. Are some cities no longer enforcing shoplifting laws?
- 10. Related offenses
- 11. Additional resources
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?
Here at Shouse Law Group, we have represented literally thousands of people charged with shoplifting. In our experience, the following four defenses can be very effective in getting these charges dismissed.
Note that if you contact us as soon as you get cited for shoplifting, we can reach out to the D.A. before criminal charges get filed to try to persuade them that their case against you is weak and should not go forward. This is called a “prefile intervention,” and it can be very effective if we can point to big holes in the state’s evidence or misconduct by the police.
2.1. You repaid the business via a 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.
A civil compromise is not so much a “defense” as it is a legal mechanism for achieving a dismissal.
2.2. You performed certain acts under an informal diversion program
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.
Similar to civil compromises, completing diversion is less of a “defense” than it is a legal mechanism for avoiding a conviction.
2.3. You are innocent because you were mistaken about certain facts critical to the case (“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.
Another example of mistake-of-fact is that you simply forgot to pay when you left the store. This is a very common occurrence when harried shoppers are preoccupied with their to-do lists or are listening to something on their earbuds. If we can show that your failure to pay was an innocent accident, then criminal charges cannot stand.
2.4. You developed an intent to steal after entering a business (“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.
Intent is always a difficult thing for prosecutors to prove since there is no way to get inside of your head. Often they rely on surveillance video in the hopes that your behaviors when entering a store indicate that you were “on a mission” to steal. Though we would argue that any such interpretations are subjective, and that you cannot deduce anything from grainy security footage.
Note, though, that even with this “after-entry 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.
3.1. When shoplifting becomes a felony
Normally shoplifting is a misdemeanor, but the D.A. can choose to bring felony shoplifting charges instead when you have been previously convicted of either:
- gross vehicular manslaughter (PC 191.5),
- murder, attempted murder, or solicitation under PC 187,
- a sex crime requiring sex offender registration,
- any sex offense on a child under 14 years old,
- any sex offense committed through force, violence, or threats,
- any serious felony or violent felony punishable by life in prison or death.
As a California felony, shoplifting carries:
- 16 months, 2 years, or 3 years in county jail, and
- up to $10,000 in fines.
Note that crimes which can be charged as either misdemeanors or felonies at the prosecutor’s discretion are called wobblers.
3.2. Civil demand letters
Merchants may also make a civil demand under Penal Code 490.5 PC. This is when the business owner demands that you pay them back for the stolen merchandise or risk being sued. This civil lawsuit would be completely separate from the criminal case.
Note that civil demand letters are sent not by the merchant but by a law firm representing them. These letters ask for not only full restitution but also up to $500 to recover costs the merchant allegedly incurred by your alleged theft.
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?
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.
Proposition 47 was passed in California in 2014. The initiative is also known as the Reduced Penalties for Some Crimes Initiative.
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 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
10. Are there related offenses?
There are four crimes related to shoplifting. These are:
- Burglary – PC 459: Entering any structure, room, or locked vehicle with intent to commit a theft or felony once inside. You are more likely to be charged with burglary than shoplifting if you enter the shopping establishment after business hours.
- Petty theft – PC 484: Stealing someone’s property or services, and that property or services are worth $950 or less. You are more likely to be charged with petty theft than shoplifting if the D.A. cannot show you had an intent to steal when you entered the store.
- Grand theft – PC 487: Stealing someone else’s property, and that property is worth more than $950. It does not matter whether the property is in a store or not. This felony carries up to three years in prison and up to $10,000.
- Trespassing – PC 602: Entering (or remaining) on someone else’s property without permission or without a right to do so. If you are accused of trying to steal from a store after business hours, you would likely face charges for trespass as well as burglary.
For more information about shoplifting laws and related topics, refer to the following:
- National Association for Shoplifting Prevention – Provides information on the causes of shoplifting, statistics, and prevention.
- California Courts – Proposition 47 – Details on Prop 47 reducing some theft crimes from felonies to misdemeanors.
- Loss Prevention Magazine – Information on retail loss prevention and shoplifting deterrence.
- What the Panic Over Shoplifting Reveals About American Crime Policy – Article about how legislators are tackling shoplifting problems, by the Marshall Project
- Cleptomaniacs And Shoplifters Anonymous, LLC (CASA) – Weekly self-help group.
- 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).