Penal Code 459.5 is California’s “shoplifting” law.
The law does not actually require someone to steal something to be prosecuted for shoplifting.
You only had to have the “intent” to steal.
(Watch this video to learn)
- How to evaluate the evidence in a shoplifting case
- Defenses in your case
- Plea bargain options
Penal Code Section 459.5 Defined
The definition of shoplifting under Penal Code section 459.5 is entering a commercial establishment during regular business hours, with intent to commit larceny, where the value does not exceed $950 (or intent to commit larceny does not exceed that amount).1
How Did Prop 47 Change Shoplifting Laws?
Under Proposition 47 which was passed into law2, with the November 4, 2014 California election, the legislature added a new misdemeanor section to the Penal Code.
It requires that defendants are sentenced to misdemeanors, instead of felonies, for “non-serious, nonviolent crimes,”
You will not be eligible for a misdemeanor “shoplifting” charge under Penal Code § 459.5 If:
- You have any serious or violent convictions. For example, rape, murder, possession of weapon of mass destruction4.
- You are registered as a sex offender.
For example, under P.C. 290(c), the mandatory sex registration provision.
How Does The Prosecutor Prove This Charge
A prosecutor can prove you guilty to the charge of commercial burglary, as a misdemeanor, under Penal Code section 459.5 if:
- The crime occurred during business hours, and
- If you entered the commercial building with the Intent to take property that does not exceed $950 in value.
Can You Also Be Charged With Theft or Burglary And Shoplifting?
If you succeed in taking the property from the store, Penal Code section 459.5 pc specifically states that
No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”California Penal Code 459.5
What If You Didn’t Actually Steal Anything?
You do not have to actually steal anything in order to be charged.
You just have to have the “intent to take property.”
If you do actually steal merchandise, and you are caught with merchandise valued at $950 or less you may also be charged with shoplifting under Penal Code 459.5.
Putting shoes in your bag and leaving the store, but being stopped by a Loss Prevention Agent prior to exiting.
What Are The Penalties For Shoplifting?
The severity of the penalties that a court may impose at sentencing depends on several factors, including the facts of your case and your criminal history.
Depending on the circumstances, a conviction under pc 459.5 can carry probation, jail time, and/or fines as listed:
- Up to 180 days in county jail
- Up to 3 years summary (informal) probation
- Fines and fees up to $1000, as determined by the court
- Additional requirements, as determined by the court
- Any combination of the above, as determined by the court
- If you are a noncitizen, ineligibility for admission and other immigration consequences, as determined by the immigration court.
What Are The Legal Defenses To Shoplifting?
Below are possible legal defenses to a charge under Penal Code section 459.5 pc:
You Had No Intent To Shoplift
Penal Code section 459.5 specifically requires, “entering commercial establishment during regular business hours, with intent to commit larceny.” The intent is a critical aspect of this charge3.
That means that you must have intended to take the property in question. If you were not aware of the property at the time or mistakenly walked out with the property, then there is no intent.
Can Intent Be Established If You Did Not Intend To Steal The Property When Entering A Store?
Intent CAN be established even if you did not intend to take any property when entering the property, but developed the intent while on the property, and acted in a way to permanently deprive the business of their property.
You Were A Victim of Entrapment By Law Enforcement Officials.
Entrapment: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead.
Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”4
There Is Insufficient Evidence Against You.
Lack of Evidence: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under the law of Penal Code § 459.5.
This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
Can You Expunge A Shoplifting Conviction?
Penal Code 459.5 is an expugnable offense in California.
Please take our free expungement eligibility test to see if you are eligible.
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
- Penal Code 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 [↩]
- California Proposition 47, the Reduced Penalties for Some Crimes Initiative, was on the November 4, 2014 ballot in California as an initiated state statute. The measure was approved. The initiative reduces the classification of most “nonserious and nonviolent property and drug crimes” from a felony to a misdemeanor. Specifically, the initiative:Mandates misdemeanors instead of felonies for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes. A list of crimes that will be affected by the penalty reduction are listed below. Permits re-sentencing for anyone currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors. About 10,000 inmates will be eligible for resentencing, according to Lenore Anderson of Californians for Safety and Justice.Requires a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public. Creates a Safe Neighborhoods and Schools Fund. The fund will receive appropriations based on savings accrued by the state during the fiscal year, as compared to the previous fiscal year, due to the initiative’s implementation. Estimates range from $150 million to $250 million per year. Distributes funds from the Safe Neighborhoods and Schools Fund as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board and 65 percent to the Board of State and Community Correction. The measure requires misdemeanor sentencing instead of felony for the following crimes:Shoplifting, where the value of property stolen does not exceed $950, Grand theft, where the value of the stolen property does not exceed $950, Receiving stolen property, where the value of the property does not exceed $950, Forgery, where the value of forged check, bond or bill does not exceed $950, Fraud, where the value of the fraudulent check, draft or order does not exceed $950, Writing a bad check, where the value of the check does not exceed $950, Personal use of most illegal drugs [↩]
- Criminal intent is a necessary component of a “conventional” crime and involves a conscious decision on the part of one party to injure or deprive another. It is one of three categories of “mens rea,” the basis for the establishment of guilt in a criminal case. There are multiple shades of criminal intent that may be applied in situations ranging from outright premeditation to spontaneous action. It is possible to establish criminal intent even when a crime is not premeditated. Individuals who commit a crime spontaneously may still understand that their actions will cause harm to another party and contravene existing criminal law. In other words, an individual that takes or withholds action with the knowledge that such behavior will lead to the commission of a crime can be said to possess criminal intent. [↩]
- In criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the “criminal.” Entrapment, if proved, is a defense to criminal prosecution. The accused often claims entrapment in so-called “stings” in which undercover agents buy or sell narcotics, prostitutes’ services or arrange to purchase goods believed to be stolen. The factual question is: Would Johnny Begood have purchased the drugs if not pressed by the narc? [↩]
I recently had a run in with loss prevention in Glendora California at the local Home Depot. The items in my cart that i was accused of not paying for I had paid for online as an in store pick up a few hours prior to my arrival at the store. The LP kept saying I stole them because I didnt go through the correct pick up procedure, however this was my first time doing in store pick up I usually have my items mailed/shipped. I realize I am at fault for not reading the fine print and checking my email for the the follow up, but I even stopped at the associate watching over self checkout and showed him my phone with the purchased items and pointed to them in my cart and got the “okay” from him to leave that he didnt know the procedure for how exactly in store pick up worked and what was required of him. How can I fight this? I wasnt arrested but i didnt steal anything either the LP took my items from me and photographed me then escorted me to customer service where they did not have my items it turns out they were in a locker and not in a bag or with a receipt to essentially the same way I had them in my cart. I made no effort to conceal anything, I questioned store employee before leaving to make sure it was all good for my in store pick up and this lunatic almost makes me late tries shaming me and for what? not picking u[p my paid for merchandise the way he wanted. I dont feel this man should be allowed to do this to people and then threaten me with police if I try and write my statement on the blank sheet he pressured me to sign. What are my options?
Was law enforcement called? Are you facing criminal charges?