In Penal Code 495.5, California law defines "shoplifting" as entering an open business, with the intent to steal merchandise worth nine hundred fifty dollars ($950) or less.1
Penal Code 459.5 PC reads : “(a) . . [S]hoplifting 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.”
(In other words, shoplifting is entering an open business intending to commit the crime of petty theft.2)
The crime of shoplifting was created by the voter initiative Proposition 47 in 2014. Prior to the passage of Prop 47, the behavior that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary.3
Here are some examples of behavior that could lead to charges under California's shoplifting law:
- Two teenagers walk into a convenient store with a plan for one of them to distract the cashier while the other steals two bottles of malt liquor.
- A college student enters a book store intending to buy one book and sneak four others out in her backpack.
- A woman enters a department store intending to steal a specific necklace worth $700.
For most defendants, shoplifting is a misdemeanor in California law. The potential penalties are up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000).4
However, if you have certain serious prior convictions on your record, then shoplifting may be punished as a California felony. These serious prior convictions include homicide, forcible sex crimes and any crime that requires you to register as a sex offender.5
An experienced California criminal defense attorney can help identify the common legal defenses that are most useful for fighting shoplifting charges. These may include:
- Lack of intent to steal;
- Mistaken identity/false accusations; and
- Police misconduct.
In order to help you better understand the California crime of shoplifting under Penal Code 459.5 PC, our California criminal defense attorneys will address the following:
2.2. Can I get a burglary conviction reduced to a PC 459.5 shoplifting conviction under Proposition 47?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The elements of the crime of Penal Code 459.5 PC shoplifting are:
- Entering a commercial establishment,
- While that establishment is open during normal business hours,
- With the intent to steal property that is worth nine hundred fifty dollars ($950) or less.6
Example: Mario goes to an electronics store planning to steal a new “smartphone” worth about $600. He enters the store and looks around him nervously when he reaches the smartphone aisle.
A guard monitoring security camera footage thinks Mario is acting suspicious and walks over to the smartphone aisle. He catches Mario trying to slip the phone into a hidden pocket in his jacket.
Mario may be charged under California's shoplifting law.
It is important to note that the legal definition of shoplifting revolves around entering the store or other business with the intent to steal already in place.7
What this means is that you are NOT guilty of shoplifting if you enter a store without intending to steal anything—but then decide to take something once you are already inside.
Example: Wilma is on a very limited food budget. She only has enough money to buy a few cans of beans and a bag of rice. She walks into her local food store to buy these items.
When Wilma is standing in line to pay for her rice and beans, she notices that her favorite potato chips are being displayed right beside the counter. She is hungry and wishes she had enough money to buy some.
When Wilma's turn in line comes, the cashier disappears for a moment to go take care of something before helping her. There is no one behind Wilma in line, so she grabs a handful of bags of the potato chips and shoves them in her purse.
Wilma is not guilty of PC 459.5 shoplifting because she did not enter the store intending to steal the chips. (She could, however, be charged with petty theft if she succeeds in leaving the store with them.)
California's burglary statute, Penal Code 459 PC, defines burglary as entering any residential or commercial building or room with the intent to commit a California felony, a grand theft or a petty theft once inside.8
If you compare this to the legal definition of shoplifting under PC 459.5, you'll see that shoplifting is actually a sub-set of burglary—in which the building entered is an open business, and the crime the defendant intends to commit inside is petty theft.
And, in fact, prosecutors used to be able to charge people who commit the crime now known as California shoplifting with burglary—which can carry felony penalties. What changed that was the voter initiative Proposition 47, passed by California voters in 2014 and effective on January 1, 2015.
Prop 47 added Penal Code 459.5 to the California Penal Code. And Penal Code 459.5 specifies that someone who commits the crime of shoplifting as described in that code section can only be charged with shoplifting—not with burglary.9
According to Torrance shoplifting defense lawyer Elisa Guadan10:
“Since the passage of Proposition 47, a defendant who previously could have been hit with burglary charges must now be charged with PC 459.5 shoplifting. Even though shoplifting charges are themselves no laughing matter, this is still a huge improvement, since a ‘shoplifting' conviction on your record will carry much less stigma—not to mention lighter penalties—than a ‘burglary' conviction.”
2.2. Can I get a burglary conviction reduced to a PC 459.5 shoplifting conviction under Proposition 47?
The answer is yes!
Prior to the passage of Proposition 47 in 2014, people could be convicted of felony second-degree burglary for behavior that would now meet the definition of shoplifting.
Prop 47 contains a provision that allows people convicted of felony burglary under these circumstances—both those who have completed their sentence and those who are still serving it—to apply for re-sentencing to a shoplifting misdemeanor.11
If this application is successful, it can reduce the amount of time left to serve in a defendant's sentence, or remove the stigma of a felony from his/her record.
If you think you might be eligible for Prop 47 re-sentencing from felony burglary to PC 459.5 shoplifting, your best move is to contact a criminal defense attorney who is familiar with both Penal Code 459.5 PC and the re-sentencing provisions of Proposition 47.
When most people hear the term “shoplifting,” they picture a person entering a store intending to walk away with physical merchandise.
But what about someone who walks into a bank intending to cash a forged check worth $950 or less (thereby committing California check fraud)?
After Prop 47 was first passed, California courts were not able to agree on whether the term “shoplifting” under Penal Code 459.5 PC includes entering banks or other establishments intending to commit petty theft with a forged check—or in some other relatively sophisticated way.12
But in 2017 the Supreme Court of California resolved the question by holding that this behavior IS shoplifting under PC 459.5. This means that defendants in this situation will not face the more serious charge of burglary.13
For most defendants, Penal Code 459.5 PC is a California misdemeanor. The potential consequences of a shoplifting conviction are:
- Misdemeanor (summary) probation;
- Up to six (6) months in county jail; and/or
- A fine of up to one thousand dollars ($1,000).14
Some defendants, though, may face more severe felony penalties for PC 459.5 shoplifting.
The defendants who may be subject to more serious consequences for shoplifting are those who have a prior conviction for any of the following offenses:
- Any California sex crime that requires him/her to register as a sex offender;
- A “sexually violent offense" under California law—which means a sex crime committed by use of force, violence, or threat of bodily injury or retaliation;
- A sex crime against a child under the age of fourteen (14);
- Penal Code 187 PC murder or attempted murder;
- Gross vehicular manslaughter while intoxicated (Penal Code 191.5);
- Solicitation to commit murder;
- Assault with a machine gun on a peace officer or firefighter;
- Possession of a weapon of mass destruction; or
- Any serious and/or violent felony that is punishable by life in prison or death.15
Under California Penal Code 459.5 PC, a defendant who commits California shoplifting with any of these priors can be charged with shoplifting as a felony and will face the following penalties:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years in county jail; and/or
- A fine of up to ten thousand dollars ($10,000).16
California Penal Code 459.5 charges are often filed against people with no prior criminal background and can be devastating to the defendant's personal and professional life.
Luckily, there are numerous legal defenses that a skilled California criminal defense lawyer can present on your behalf to help you fight PC 459.5 shoplifting charges.
Some of the most common legal defenses for fighting California shoplifting charges are:
Lack of intent
Intent is critical to a shoplifting prosecution. If you did not actually intend to steal anything, you can't be convicted of shoplifting.
And the timing of the intent is also crucial. You need to have intended to commit a crime at the time you entered the business. If you only formed the intent after you were inside, you are not guilty of PC 459.5 shoplifting.17
Simply showing that you didn't do it is often one of the best ways to fight a PC 459.5 shoplifting charge. It's not uncommon for innocent people to get arrested by mistake.
Maybe this is a case of mistaken identity--you happen to look like or have the same name as someone who was reported to the police for shoplifting. Or maybe a vindictive store owner or employee is falsely accusing you of shoplifting.
Examples like these are why it is so important to hire a California criminal defense attorney as soon as you are falsely charged with PC 459.5 shoplifting. Even when the evidence appears damaging, an experienced lawyer will know how to exploit the weaknesses in the prosecution's case to fight the shoplifting charge.
Police responding to calls about alleged instances of shoplifting are often inexperienced or overworked. Many of them harbor some kind of racial bias against particular groups of suspects. As a result, they are prone to forms of police misconduct such as:
- "Planting" or "fabricating" evidence;
- Violating your Fourth Amendment right against unreasonable searches; or
- Coercing your confession.
If police misconduct is suspected in a PC 459.5 shoplifting case, we can file a Pitchess motion as to the officer. If granted, a Pitchess motion allows us to see whether others have made similar complaints about the officer in the past.
If we can show that the officer engages in a pattern of police misconduct, the prosecutor or judge may dismiss Penal Code 459.5 shoplifting charges.
California shoplifting under PC 459.5 is closely related to the offenses of grand theft and petty theft.
If you take someone else's property unlawfully, you could be convicted of either
- Penal Code 487 grand theft, or
- Penal Code 488 petty theft.18
Grand theft is charged when the property taken is worth more than nine hundred fifty dollars ($950) or is taken directly off of the victim's person. All other cases are petty theft.19
Many cases of what we think of as “shoplifting” will actually be charged under California's petty theft law rather than as PC 459.5 shoplifting.
That's because petty theft is the actual act of stealing the property. Shoplifting, in contrast, is the act of entering the store or other business intending to steal the property. If you actually succeed in leaving with merchandise, you are likely to be charged with petty theft instead.
In any event, Penal Code 459.5 PC makes it clear that you can only be charged with shoplifting or with petty theft—not with both—for a given act.20
Like shoplifting, petty theft is a misdemeanor carrying a maximum county jail sentence of six (6) months.21
Penal Code 602 PC trespass is defined as entering another's property without the right to do so.22
There is usually little overlap between the crimes of PC 459.5 shoplifting and the crime of trespass because shoplifting by definition only occurs at a business during normal open hours, when presumably the defendant had the right to be there.
But sometimes shoplifting charges are filed in situations where the only thing that is completely clear from the evidence is that a store owner or employee was hostile to a defendant and wanted him/her off their property.
In a case like this, if the prosecution's evidence about your intent to commit theft is weak, you may be able to negotiate a reduction of your PC 459.5 charges to the less serious crime of PC 602 trespass. Trespass is usually a misdemeanor and is sometimes even an infraction.23
Call us for help…
For questions about the California crime of shoplifting under Penal Code 459.5 PC, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada shoplifting laws, please see our page on Nevada shoplifting laws.
1 Penal Code 459.5 PC – Shoplifting. (“(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.”)
2 See Penal Code 487 PC; Penal Code 488 PC [relevant to definition of PC 459.5 shoplifting].
3 Penal Code 459 PC – Definition [of California burglary; compare to definition of California shoplifting]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”)
4 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
See also Penal Code 19 PC – Punishment for misdemeanor; punishment not otherwise prescribed. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor [such as PC 459.5 shoplifting] is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
5 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
See also Penal Code 667(e)(2)(C)(iv) PC; Welfare Code 6600(b) WC; and Penal Code 290 PC.
6 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
8 Penal Code 459 PC – Definition [of California burglary; compare to definition of California shoplifting], endnote 3 above.
9 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
10 Torrance shoplifting defense lawyer Elisa Guadan is an honors graduate of Western State College of Law in Fullerton. She defends clients accused of shoplifting and other California theft crimes at various courts in Los Angeles and Orange Counties, including Governor George Deukmejian courthouse in Long Beach, the Compton Courthouse in Compton, and the Central Justice Center in Santa Ana.
11 Penal Code 1170.18 PC – Petition for recall of sentence; resentencing procedures; reduction of felonies to misdemeanors [applies to reduction of felony burglary to PC 459.5 shoplifting].
12 Compare People v. Vargas (2016) 243 Cal.App.4th 1416 (holding that entering check cashing establishment with intent to cash a forged check counts as PC 459.5 shoplifting) with People v. Gonzales (2016) 242 Cal.App.4th 35 (holding that this same behavior is not PC 459.5 shoplifting and should instead be charged as burglary).
13 People v. Gonzales (Mar. 23, 2017) S231171. ("Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant‟s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute. ")
14 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
See also Penal Code 19 PC – Punishment for misdemeanor; punishment not otherwise prescribed, endnote 4 above.
15 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
See also Penal Code 667(e)(2)(C)(iv) PC; Welfare Code 6600(b) WC; and Penal Code 290 PC.
16 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
See also Penal Code 1170(h) PC – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense [such as felony shoplifting under PC 459.5] shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [such as shoplifting with a serious prior], in addition to the imprisonment prescribed.”)
17 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
18 See Penal Code 487 PC; Penal Code 488 PC [relevant to definition of PC 459.5 shoplifting].
19 See same.
20 Penal Code 459.5 PC – Shoplifting, endnote 1 above.
21 Penal Code 490 PC – Petty theft; punishment [compare to penalties for PC 459.5 shoplifting].
22 Penal Code 602 PC – California trespass law [potential charge reduction from Penal Code 459.5 shoplifting].