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What Is Shoplifting, Its Defenses and Possible Punishment?

Shoplifting is the unpermitted taking of an item belonging to another with the intent to permanently deprive the owner of the item.  It is defined as petty theft (California Penal Code § 484 (a)), which means the value of the items stolen is $950 or less.  It is always a misdemeanor, but nonetheless serious because it is a crime of dishonesty and a conviction for this can have immigration consequences.  Even the mere charges can destroy one’s employment opportunities and reputation.
Update to This Article:  Proposition 47 created Penal Code § 459.5 as shoplifting.  It applies to any theft of $950 or less and has the same maximum punishment: six months in county jail and a $1,000 fine, plus penalties and assessments.
When the value of the item taken exceeds $950, it is no longer shoplifting.  It is grand theft (Penal Code § 487).

The most common facts leading to such a charge of shoplifting is one walking out of a store with items in hand without paying for the items.  Shoplifting can also be charged when one is caught changing the price tag on an item to pay a lesser amount for the item, or by embezzlement of store property by an employee entrusted with the sale or storage of such property.  Lastly, but most uncommon, is when one poses as a store employee to walk out with store property without paying for it.

To convict one of petty theft, the prosecutor only needs to prove theft of property and that the value was $950 or less.  Theft is the permanent deprivation of another of his or her property without consent.  Theft can also be the temporary deprivation of another's property when the duration of the taking deprives the owner of a major portion of the item’s value or enjoyment.

There are many clever ways in which people try to steal items from stores.  It can be taking an item and then trying to claim a reward for “finding it.”  It can be taking an item and intending to return it for a refund, including finding a receipt outside a store and taking it into the store only to find on item on the shelf matching the receipt and then demanding a refund.  Shoplifting can also include taking an item from a store, intending to sell it back to the store.

The value of the item is the value of the item at the time it is taken.  So if it is on sale, the sale price controls.

The defense of such charges is often difficult if the client is caught walking out of the store without paying for certain items.  However, like commercial burglary, the intent to steal may be missing.  This can happen if the client inadvertently walked out due to mistake, such as being distracted by a cell phone conversation, an e-mail or a text message, or being preoccupied with an unruly child, or overcome with emotional trauma (i.e. the client recently was diagnosed with cancer and cannot stop thinking of the consequences).  Often, the store security films can support such defenses.  In unusual circumstances, a client’s medical condition can be a factor.  

Resolving such cases on terms that a client finds acceptable is often difficult.  The easiest terms are when the store signs a declaration stating that they have received the property back, been paid their loss prevention or investigation fees and do not wish criminal prosecution of our client.  When this occurs, we can file a Motion for Civil Compromise under Penal Code §§ 1368 and 1369 to have the case dismissed.

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Other times, we ask our client to complete an online shoplifting prevention course while the case is pending to show our client is responsible and genuinely concerned about what caused him or her to steal.  We can then show the completion certificate to the prosecutor and hope for a reduction of charges to a disturbing the peace (either as an infraction or a misdemeanor), trespass (either as an infraction or misdemeanor) or, best yet, a delayed entry of plea or delayed entry of judgment.  With a delayed entry of plea or delayed entry of judgment, the case is ultimately dismissed. 

For more information about shoplifting, click on the following articles:
  1. What Is a Motion for Civil Compromise?
  2. What Is Commercial Burglary (Penal Code § 459) and What Are the Defenses?
  3. Store Security Video Evidence, without Any In-Person Identification, Can Be Used to Convict You
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