Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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Shoplifting

Definition of shoplifting in California

Under California Penal Code section 459.5, subdivision (a), 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).” (Pen. Code, § 459.5, subd. (a).)

Stated another way, to prove that a person is guilty of shoplifting, the prosecution must show the following:

  1. The defendant entered a commercial establishment;
  2. When the defendant entered the commercial establishment, it was open during regular business hours;

AND

  1. When (he/she) entered the commercial establishment, (he/she) intended to commit theft.

(CalCrim 1703.) There are a few nuances to the elements of this crime, discussed below.

“Entering”

The definition of what amounts to “entering” a commercial establishment is pretty broad. The jury instructions for this particular crime state that “[a] person enters a structure if some part of his or her body [or some object under his or her control] penetrates the area inside the structure’s outer boundary.” (CalCrim 1703.) And the outer boundary of a structure “includes the area inside a window screen.” (CalCrim 1703.)

“Commercial Establishment”

Term “commercial establishment” as it appears in Penal Code § 459.5(a), means a place of business established for the purpose of exchanging goods or services.  A check cashing business clearly satisfies this definition.  (People v. Smith, (2016) 247 Cal.App.4th 247.)

Regarding what constitutes a commercial establishment, the California Supreme Court has clarified that once a person is already inside of a building, the person’s subsequent entry to an interior room “that is objectively identifiable as off-limits to the public with intent to steal therefrom is not punishable as shoplifting under section 459.5, but instead remains punishable as burglary.” (People v. Colbert (2019) 6 Cal.5th 596, 608.)

In other words, if you are already in a commercial establishment, and you decide to enter an interior off-limits room, you can be charged with burglary but not shoplifting.

“Intent to commit theft”

Interestingly, a person does not need to actually steal anything in order to be convicted of shoplifting. (CalCrim 1703.) Rather, they only need to have the intent to commit theft at the time they enter the establishment. (CalCrim 1703.) This leaves open the opportunity for prosecution for shoplifting beyond what people traditionally think of when they hear the word “shoplifting.” More specifically, there is no need for property to be taken in order to be convicted of shoplifting.  Simply concealing an unpurchased item within a purse or cutting sensor tags off of an unpurchased item may be evidence of intent to commit theft.

Relevant value

Although the value of the property as being $950 or less is generally a determination of fact for the jury, one case held that where a person stole items and then traded them in at a pawn shop for cash, the amount of cash was the relevant value, not the value of the stolen items. (People v. Pak (2016) 3 Cal.App.5th 1111, 1120.)

Misdemeanor shoplifting versus felony shoplifting

Shoplifting is generally punished as a misdemeanor. The exception to this rule is that if a person has one or more prior convictions for specific offenses, the statute indicates that shoplifting may be punished as a felony under Penal Code section 1170, subdivision (h). (Pen. Code, § 459.5, subd. (a).) Those offenses include “an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667” or “an offense requiring registration pursuant to subdivision (c) of Section 290.” (Pen. Code, § 459.5, subd. (a).)

Thus, the prior offenses that could lead to shoplifting being punished as a felony instead of a misdemeanor include:

  1. A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
  2. Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than the defendant as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than the defendant, as defined by Section 289.
  3. A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
  4. Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
  5. Solicitation to commit murder as defined in Section 653f.
  6. Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
  7. Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
  8. Any serious or violent felony offense punishable in California by life imprisonment or death.
  9. Any offense that requires registration as a sex offender under Penal Code section 290.

(Pen. Code, § 667, subd. (e)(2)(C)(IV); § 459.5, subd. (a).)

Relationship between shoplifting and burglary and theft

 As discussed above, California’s shoplifting statute specifically defines what constitutes shoplifting. The statute goes on to indicate that “[a]ny other entry into a commercial establishment with intent to commit larceny is burglary.” (Pen. Code, § 459.5, subd. (a).) It further says that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Pen. Code, § 459.5, subd. (b).)

In other words, if you go into a store during business hours to commit a felony assault or vandalism or other non-theft related crime, you can be charged with burglary as opposed to shoplifting.  Further, you cannot be charged with both shoplifting and burglary or theft for stealing the same property.