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. The crime is punished by up to 6 months in jail.
459.5 PC states that “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.”
- 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,
- having the defendant perform certain acts under a pretrial diversion program,
- showing that there was a mistake of fact, and
- showing that the defendant only formed the intent to steal after entering a business (i.e., 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 is the law of shoplifting in California?
- 2. What are the best defense strategies?
- 3. What are the 459.5 PC penalties?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. What are loss prevention officers allowed to do in California?
- 7. How did Proposition 47 affect the crime of shoplifting?
- 8. Are there related offenses?
1. What is the law of shoplifting in California?
A prosecutor has to prove the following in order to convict a person of 459.5 PC shoplifting:
- the defendant entered a “commercial establishment,”
- he/she entered that establishment while it was open during normal business hours, and
- the accused 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 a defendant left a store with merchandise. This means a person is guilty of shoplifting if a guard catches him/her 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?
Defense lawyers draw on several legal strategies in attacking or resolving shoplifting charges. These include showing that:
- the defendant repaid the business via a civil compromise.
- the accused performed certain acts under an informal diversion program.
- the defendant is innocent because he was mistaken by certain facts critical to the case.
- The accused developed an intent to steal after entering a business.
2.1. Civil compromise
A civil compromise in a shoplifting case is when the shoplifter agrees 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 a defendant pleads guilty and agrees 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 an accused misunderstands certain facts that disprove an element of the crime. In Penal Code 459.5 cases, this defense is often used to show that a defendant did not have an 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 a person does not have an intent to steal when he first enters a business. Rather, the person decides to steal something once inside a store. This can work as a defense since shoplifting requires a defendant to have an intent to steal upon entering a shop.
Note. though, that even with this defense, an accused might still be found guilty of petty theft.
3. What are the 459.5 PC penalties?
A violation of this law is a misdemeanor.
The offense is punishable by:
- custody in county jail (as opposed to state prison) for up to six months, and/or
- a maximum fine of $1,000.4
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 a person deportable.
5. Can a person get a conviction expunged?
A person can get an expungement if convicted of shoplifting.
An expungement is favorable since it erases many of the hardships of a conviction.
A judge will grant an expungement if a convicted party successfully completes:
- probation, or
- his jail term (whichever was imposed).
6. What are loss prevention officers allowed to do in California?
Loss prevention officers are private security guards. They are employed by many stores to prevent shoplifting. They do this by monitoring shoppers.
These officers are not the same as law enforcement officers. This means they cannot arrest a person suspected of shoplifting.
But they can still do the following if they believe someone is stealing store property:
- Ask to look in a suspect’s bag (but the suspect can refuse),
- use reasonable force to detain someone,
- detain a suspect for a reasonable time, and
- require a person to stay with them until the police department arrives.
Note that a person is not required to speak with a loss prevention officer. If suspected of shoplifting, it is best for the suspect to say nothing at all until he/she speaks with a lawyer.
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 to defendants that were:
- previously convicted of burglary (prior to the new law), but
- actually committed the crime of shoplifting.
The initiative allows these parties to apply for re-sentencing. If approved by the court, their sentences will be reduced from felony burglary to misdemeanor shoplifting.
8. 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.
8.1. Burglary – PC 459
Penal Code 459 PC is the California statute that defines the crime of burglary.
A person commits this crime when:
- he/she enters any structure, room or locked vehicle, and
- does so with the intent to commit a theft or felony crime once inside.
Shoplifting is a sub-set of burglary where the defendant:
- enters an open business, and
- does 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.
8.2. Petty theft – PC 484
Penal Code 484 PC is the California statute that says a person commits petty theft when:
- he/she steals 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 a person “stealing” from an open business, and
- petty theft can involve a person “stealing” under any other situation or environment.
For example, a person can be charged with petty theft if he/she takes a neighbor’s shovel. But no shoplifting charges could get raised in this scenario. This is because the person was not taking something from an open business.
8.3. Grand theft – PC 487
Penal Code 487 PC is the California statute that defines the offense of grand theft. A person commits this crime if:
- he/she takes 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 someone taking something from an open business, and
- grand theft involves the taking of property worth more than $950.
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.
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 and 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.
- 8 USC 1227 – Deportable aliens.