Shoplifting, Commercial Burglary and Theft in California

The act of stealing from a store in California can lead to a variety of different criminal charges, depending on the circumstances.  Prosecutors have a wide range of options for dealing with individuals who commit retail theft.  The good news, though, is that defendants also have several options to fights these charges. 

Grand Theft vs. Petty Theft

Stealing from a retail business is theft (AKA "larceny" -- larceny is just a fancy word for "theft").  If the value of the property is more than $950, the case will be treated as a felony ("grand theft").  Generally, theft of property valued at less than $950 is a misdemeanor ("petty theft").  

Grand theft can be punished by up to 3 years in  jail.  Petty theft, on the other hand, usually carries a maximum sentence of 180 days in jail, plus a fine of $1,000.  Petty theft can even be treated as an infraction, which carries no jail time and a fine of only $250.  

Shoplifting

Under California law, "shoplifting" is different from the crime of petty theft.  To be guilty of shoplifting, the DA must prove that the defendant entered a store during normal business hours with the intent to steal.  Prosecutors do NOT need to prove that the defendant actually completed the theft, only that he planned to steal at the time that he entered the store.  

If the subject takes something valued at less than $950 (or if it can be proven that he planned to take something valued at less than $950), then shoplifting is usually treated as a misdemeanor.  If the value of the goods is more than $950, then prosecutors can file felony charges (including Commercial Burglary, below).  Shoplifting can also be treated as a felony if the defendant has a prior conviction for a similar offense.  

Commercial Burglary

Commercial burglary in California is the crime of entering a store with the intent to commit theft during hours when the business is not open to the public.  

As mentioned above, prosecutors can also file Commercial Burglary charges if they can prove that the the defendant entered a store with the intent to steal property valued at more than $950, during normal business hours.

The maximum sentence for commercial burglary is 3 years in jail.  

Organized Retail Theft

If prosecutors can prove that more than one person worked together to commit theft, any individual who participated in the plan can be charged with Organized Retail Theft under section 490.4 of the California Penal Code.  This includes anyone who actually steals the merchandise, as well as anyone who purchases the goods knowing that they are stolen, and anyone else who assists, organizes supervises or encourages the plan in any way.  

If the DA can prove that participants committed more than one organized theft within a 12-month period, and the total value of goods stolen during that time is more than $950, then they can all be charged with felonies.  Again, the maximum penalty for Organized Retail Theft is 3 years in jail.  

Defense Options

In any criminal matter, the defense attorney's first object is to attack the facts of the prosecutor's case.  We try to collect and present evidence that will prove our clients are innocent (or at least not guilty).  

Sometimes, though, the evidence is bad.  In many theft cases that I've handled, the surveillance cameras conclusively show my client removing tags, concealing items inside other bags, entering the dressing room with several items and emerging with fewer, etc.  In these situations, we have to find creative solutions to keep my clients out of jail.  Luckily, there are several ways to defeat theft charges without going into custody.  The options described below can even result in a total dismissal of charges.   

Civil Compromise

Under a Civil Compromise, a defense attorney negotiates a settlement directly with the victim, rather than plea bargaining with the District Attorney.  This usually involves writing a check in exchange for the victim's signature on a document requesting that charges be dismissed.  

The document must contain some "magic" legal language and should be negotiated only by a qualified attorney.  There are a few fine lines between "negotiation", "witness intimidation" and "extortion". 

Deferred Sentence

In some counties, courts have implemented a "Deferral of Sentence Pilot Program" ("DOSP").  Under this voluntary program, qualified defendants are given the opportunity earn a total dismissal of all charges after one year.  

To take advantage of the DOSP, subjects must plead "guilty" up front.  Rather than being sentenced and convicted, though, they are ordered to complete whatever tasks that the judge deems appropriate.  These may include community service, AA meetings, counseling, etc.  Sentencing is postponed for one year.  If the participant completes all terms and remains law-abiding for that year, then charges are dismissed at the time of sentencing.  If the participant fails to comply, however, the court already has his or her "guilty" plea on file.  The judge can simply impose whatever penalty is appropriate at that time.  

DA Diversion

In Orange County, some defendants may qualify for the "DA Diversion" program.  Defendants who chose to take advantage of this deal are ordered to attend a 6-hour class about the harms of shoplifting.  The class is presented on a Saturday at Santa Ana Community College.  

Participants are also required to provide a DNA sample for retention in the District Attorney's database.  The sample is collected by swiping a cotton swab on the inside of the subject's cheek.  The results are used to crack unsolved cases.  

Similarly to the DOSP program, defendants who participate in DA diversion are usually required to plead "guilty" in advance.  Once they return to court with "proof of completion", their guilty pleas are thrown out and the case is dismissed.  Prosecutors do have discretion, though, to allow defendants into the diversion program without pleading guilty up front.  This is usually a selling point for defendants who hold professional licenses (doctors, nurses, etc.), who don't want to disclose a "guilty" plea to their governing boards.  

The DA Diversion program is usually fairly quick and easy for defendants to complete.  Unlike the DOSP program,  in which sentencing is postponed for a full year, sentencing in the DA Diversion Program is usually scheduled about 3 months out. 

If you or a loved one has been arrested or cited for theft or shoplifting in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.