Penal Code 459.5 Shoplifting

For historical background, these cases used to be charged as commercial burglaries under the far more serious Penal Code section 459. A “burglary” conviction, even as a misdemeanor, looked bad on folks' criminal records. For years, the courts were flooded with petty shoplifting cases dressed up as burglaries until 2014, when a voter initiative led to the creation of, among other things, Penal Code section 459.5, shoplifting -- certainly a better looking charge to have on your record.

Assuming the item(s) stolen were valued less than $951, shoplifting cases are generally charged as either a violation of Penal Code section 459.5(a) or section 490.2 (petty theft), or both. Proving you guilty of PC 459.5(a) is harder for the DA because it requires 12 jurors to agree that you intended to steal prior to entering a store. PC 490.2 petty theft, on the other hand, does NOT require proving your intent to steal prior to entering the business. In fact, you're guilty of PC 490.2 as soon as you picked that item up and decided to steal, even if you only moved it an inch and ultimately put it right back down.

I suppose a PC 459.5 standalone charge makes sense in the event you came into a store planning to steal something, but then changed your mind and took nothing. As a theoretical or academic exercise, sure, you're guilty. But, in real life, you don't see shoplifting cases where no item was actually grabbed off a shelf -- can you imagine? Good luck DAs getting a jury to care at all!

Also, as a practical matter, there's hardly an important difference between a petty theft conviction for PC 490.2 versus a PC 459.5. There are other technical differences between the two offenses: for example, a PC 490.2 petty theft can occur anywhere; it doesn’t have to be from a store. But, at the end of the day, woopty-doo -- a theft is a theft. Thus, when it comes to petty theft crimes, prosecutors don't generally care which offense you're convicted of, so long as it's a theft offense on your record. As a result, most DAs are going to go the easy route and simply prosecute you for PC 490.2. 

Now let’s dive into the nitty gritty.

​ELEMENTS OF THE OFFENSE

​To prove you guilty of PC 459.5, shoplifting, the DA must prove each of the following elements beyond a reasonable doubt:

  1. ​You entered a commercial establishment;

  2. It was open during regular business hours; and

  3. When you entered, you intended to commit a theft.

 

UNDERSTANDING THE ELEMENTS

By far the most effective defense is arguing that you did not have the intent to steal at the time you entered the store.

How do DAs prove your intent?

They can’t dive into your brain, so to prove your intent DAs rely on showing the circumstances that collectively make you look guilty. For example, if you grabbed various items, hid them in your pants, walked out the store without paying, and didn't have any money on you after you got caught, then you're going to look pretty guilty to any jury. And, of course, if you admitted after being questioned that you entered the store intending to steal, you've completely shot yourself in the foot. 

​But what if I formed an intent to steal after I entered the store?

Exactly! That’s technically a defense to PC 459.5. There are a lot of cases where it's vague whether you really intended to steal before entering the store. In other words, you could enter fully intending to shop in a legal manner until you spot some shiny object beyond your budget in the aisle and decide to steal it. In such an instance, you are not guilty of shoplifting under Penal Code section 459.5. 

HOWEVER, you’d still be guilty of a 490.2 petty theft, which doesn't require proof of intent before you entered a store. The point is, if the DA prosecutes you under section 459.5, even if you so plainly stole, even if it's on video, etc., it's still very possible to beat the charge if your case proceeded to trial. 

What if I didn’t actually steal anything once in the store?

The DA doesn’t have to prove you actually took anything. You’re guilty simply by entering the store with the intent to steal.

What counts as entering the business?

A person enters a structure if some part of your body (or some object under your control like a shopping cart) penetrates the area inside the structure’s outer boundary. A structure’s outer boundary includes the area inside a window screen.

The only time getting into the weeds on this point is whether you even came close to the store’s entrance but then turned around. You’re not guilty for having an intent to steal in the parking lot outside; it’s only until you act on that intent by stepping foot into the business

HOW MUCH JAIL YOU FACE

First of all, if the stolen property was more than $950, the DA could file the case as a felony and, if you were convicted, you could face up to 3 years in prison. Far more realistically, if the case was a felony, you’d likely get felony probation and up to a year in local county jail (but probably somewhere between a few weeks to a few months). 

Odds are that if you’re facing a PC 459.5 shoplifting charge, the case is or will be resolved for a misdemeanor. By law, the maximum punishment for misdemeanor theft is 6 months. You’re not likely facing that, though.

By law, the maximum punishment for misdemeanor theft is 6 months. You’re not really facing that, though.

It all depends on your criminal history or hopefully lack thereof. Assuming you have little to no criminal history, you generally aren’t going to face too heavy of a punishment for a misdemeanor theft conviction. Most likely, you’d get 1.5 to 3 years of informal unsupervised “court” probation and probably not more than a handful of days of jail. Typically, you would complete a work program instead of going to actual jail.

Diversion?

Sometimes, you can negotiate a “diversion” sentence where your case gets dismissed after, typically, completing a certain number of community service hours (e.g., 10-20) and/or a class that addresses compulsive theft behavior. 

Diversions are a great way to get a case dismissed if it becomes an option. The policies of DA’s Offices differ. Many counties have diversion options if the theft is small enough (e.g., below $200). But if you have other convictions from your past, the odds are the DA won’t extend you a diversion option. 

Infraction?

An infraction is a lesser offense than a misdemeanor. For example, a speeding violation is an infraction. By definition, you can’t go to jail for an infraction; you only face a fine. It’s much better to have an infraction on your record than a misdemeanor.

For thefts that are for $50 or less, the DA has the option to offer you the lesser infraction charge of Penal Code section 490.1(a). But it’s not mandatory. Even if you got caught stealing only a $5 item, the DA can still choose to charge you with a misdemeanor. And, they often do. But just because a case starts out as a misdemeanor doesn’t mean you can’t negotiate it down to an infraction. So, that’s another potential path to seek in any pretrial negotiations to resolve the case.

FINAL THOUGHTS

Remember it’s all about proving your criminal intent to steal. If it’s unclear from the circumstances whether you planned to steal before entering the store, then you can beat the PC 459.5 charge on a technicality. But if your anticipated defense is that you only planned to steal once inside the store, the odds are the DA will plan for that loophole by also charging a PC 490.2 petty theft.

One final note about theft cases in general: Believe it or not, being intoxicated could be a legitimate defense. If you were so drunk or high that you had no idea what you were doing, the DA may struggle to prove your criminal intent. That’s how critical the intent element is. 

In other words, it comes down to whether your failure to pay was an honest mistake or not. If it’s not obvious you intended to steal, then strongly consider fighting your case. 

For example, I had a client suffering from a neurodegenerative disease who, while shopping at a major store, forgot to pay for the items in one of her several bags at the self-checkout aisle. When stopped outside the store, she explained how it was an honest mistake due to forgetfulness caused by her disease. The store employees didn’t care. The police didn’t care. And the DA, to my dismay, didn’t seem to care, either. What happened? We pushed the case all the way to trial. I hired a neuropsychologist who was going to testify about my client’s condition. The judge was appalled with the DA for forcing my ill client to fight her case to trial. Ultimately, the case got dismissed. 

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