Orange County Shoplifting Lawyer

Over the last few years, news headlines and outcries from the retail community have brought political focus on shoplifting in California.  In 2021, the California legislature responded to this outcry by  creating a new crime of organized retail theft under CPC 490.4. In summary, organized retail theft is:

• Where one person acts with another, as an agent of another, or recruits, coordinates, organizes, or supervises another to steal merchandise from a retail or online marketplace with an intent to sell, exchange, return or receive the stolen merchandise.

Under CPC 490.4, organized retail theft is a “wobbler”, meaning that it can be charged as a felony or misdemeanor.  This new statute does not apply to lone shoplifters or people who steal for their own use.

Most shoplifting is charged under CPC 459.5.

Proposition 47, which came into effect in 2014, defined shoplifting in California Criminal Code Section 459.5 as:

• Entering a commercial establishment during regular hours where property is taken, or intended to be taken, and the property is valued at $950 or less. 

CPC 459.5 is a misdemeanor with a maximum penalty of a $1,000 fine and up to 6 months in county jail.

A successful prosecution for shoplifting under CPC 459.5 requires that each element of the statute be proved beyond a reasonable doubt.  These elements are:

• The defendant entered a business open to the public;
• During regular business hours; and
• Stole, or intended to steal, something valued at $950 or less.

Note that the prosecution does not need to prove that the items were actually taken from the store, an intention to take the property is sufficient.  California law also prevents double charging by the prosecution. Once charged with shoplifting, a defendant cannot also be charged with burglary or theft of the same property.

A successful defense to a charge of shoplifting means contesting one or more of the elements listed above and casting doubt on the prosecution’s version of the story of what happened. 

A first time shoplifting offense can be punished by six months in jail and a fine of up to $1,000. Most treacherous is the criminal record that a conviction or guilty plea will create. However, a first time offender may be placed in a diversion program arranged by an experienced and skilled Orange County criminal defense lawyer like those at The Law Offices of Bryan R. Kazarian. The benefit of first offender alternatives to a criminal conviction is that once the diversion program is completed, the charge gets dismissed, thereby eliminating a criminal record that might follow you everywhere. 

A diversion program might include:

• Restitution
• Completing community service hours
• Taking an anti-theft class

The maximum misdemeanor penalty for conviction or guilty plea of shoplifting is six months in jail and a fine of $1,000. However, if you are accused of stealing merchandise valued at more than $950, the prosecution can charge you with grand theft, defined by CPC 487. Grand theft is a wobbler and may be charged as a misdemeanor or as a felony.  If it is charged as a felony, the maximum sentence is three years state prison to be served in the county jail and fines up to $10,000.

Felony penalties can also apply if the defendant is convicted of shoplifting and has a prior conviction for one of these crimes:

• A sex crime that requires registration as a sex offender
• Any sex crime committed on a minor under the age of 14 years
• Any sex crime committed by force, violence, or threats
• Gross vehicular manslaughter under CPC 191.5
• Murder, attempted murder, or solicitation under CPC 187
• Any serious or violent felony punishable by life in prison, or death

In addition to criminal charges, the affected business can make a civil demand, under CPC 490.5, for damages of up to $500 in addition to the retail value of the merchandise, if the merchandise is not returned in merchantable condition. This is a civil action apart from any criminal prosecution.