Introduction

Shoplifting (California Penal Code section 459.5) may at first seem like a relatively innocuous crime, but it could have severe long-term consequences for you.

Specifically, although it is generally charged as a misdemeanor that carries “only” a maximum of six months in county jail, certain circumstances give rise to it being charged as a felony that could result in years in prison.

In other words, if you were previously convicted of certain felonies (discussed below) then your current Shoplifting charge will also be charged as a felony.

In addition, if you merely threatened a store employee or security guard either during or after the shoplifting theft – for example, during your attempt to flee – then you would be charged with a felony for what’s called an Estes Robbery” (California Penal Code section 211).

More specifically, an Estes Robbery is charged as Second-Degree Robbery (California Penal Code section 212.5(c)).

See People v. Estes (1983) 147 Cal.App.3d 23, 28.

See also CALCRIM number 3261 (“While Committing a Felony: Defined—Escape Rule”).

Fortunately, however, new proposed legislation is making its way through the hands of California lawmakers which, if passed, would create two degrees of Shoplifting/Petty Theft, thereby putting an end to the overcharging of these crimes (see below).

In any event, even a misdemeanor conviction without a jail sentence can ruin your life because any type of theft, including Shoplifting, is considered to be a crime of moral turpitude. This could prevent you from obtaining employment, a professional license, housing, banks loans, military service, and/or legal immigration status (depending on your circumstances).

California Senate Bill 82

In early Nov. 2014, California voters approved Prop. 47 (the “Safe Neighborhoods and Schools Act”), which differentiated between misdemeanor Petty Theft (California Penal Code section 486; California Penal Code section 490.2), which entails the theft of something worth less than $951, and felony Grand Theft (California Penal Code section 487), which concerns the theft of something worth at least $951.

And this is how California Theft law remains to this day. However, in mid-Dec. 2020, state senator Nancy Skinner introduced new legislation that would divide Petty Theft, which includes Shoplifting, into two degrees.

Specifically, first-degree petty theft would entail you stealing something worth $950 or less from someone or some business without using a deadly weapon or causing serious physical harm.

Such a misdemeanor, like most misdemeanors, would be punishable by a maximum of 12 months in jail. More importantly, the bill, if approved, would explicitly prohibit a prosecutor from charging this crime as a felony Robbery or Burglary.

All other types of petty theft would be second-degree petty theft.

In addition, the bill, if approved by lawmakers, would be effective on January 1, 2022, and would enable anyone currently in jail or prison for felony Petty Theft, Shoplifting, or Estes Robbery convictions to be resentenced.

See: leginfo.legislature.ca.gov.

See also: latimes.com.

Theft Crimes – Shoplifting -- Pre-Files/Early Dismissals

Ninaz Saffari, founding lawyer of the Los Angeles Defense Attorney Law Firm (LADALF), has been successfully representing clients on a Pre-File basis since she went into private practice more than 12 years ago (after she left the Los Angeles County Public Defender’s Office following her four-year tenure there).

These types of Pre-Files for Shoplifting (California Penal Code section 459.5) cases usually work like this: the suspect is caught on camera or spotted by a store employee allegedly stealing an item (worth less than $950) from the retail establishment, but may or may not be apprehended at the scene.

Once the police are called, a detective gets assigned to the case, who then investigates to determine whether he/she should refer the case to the City Attorney’s Office for prosecution as a misdemeanor.

Alternatively, as discussed above, if the detective believes the charge is serious enough to merit prosecution as a felony, he/she will refer the matter to the DA’s Office.

If the suspect gets wind of the investigation, or is either cited for a misdemeanor and released at the scene or is arrested – he/she hires Ninaz on a Pre-File basis, i.e., before a formal criminal complaint is filed against him/her.

Ninaz then tries to work closely with the detective to informally resolve the matter so that it’s never referred for prosecution. This typically requires Ninaz to conduct her own investigation and thereafter present exculpatory or mitigating evidence to the detective.

However, if the matter has already been referred for prosecution, Ninaz will try to do the same with the prosecutor to either decline to file charges or to even dismiss the case right after it’s been filed.

As indicated by several of LADALF’s Case Summaries below (and on LADALF’s “Case Summaries” dropdown menu on the home page of this website), Ninaz has enjoyed unparalleled success in handling Pre-File cases, including for Shoplifting and even Estes Robberies (California Penal Code section 211).

California Statutes – Theft Crimes -- Shoplifting

California Penal Code section 459.5 (Shoplifting)

This statute defines Shoplifting as a misdemeanor crime where you allegedly entered a retail store or other business during its open-to-the-public hours with the specific intent to commit a theft therein (“larceny”) of an item not worth more than $950.00. Penal Code section 459.5(a).

(An item stolen – or attempted to be stolen – under these circumstance that is worth more elevates the charge to Second-Degree Commercial Burglary pursuant to California Penal Code section 460(b).)

However, if you’ve previously been convicted of a particular Strike offense under California Penal Code section 667(e)(2)(C)(iv), then the current Shoplifting offense would be charged as a felony.

Specifically, those particular Strike offenses include the following:

California Penal Code section 211: https://codes.findlaw.com/ca/penal-code/pen-sect-211.html) (“Estes Robbery”)

This crime involves you shoplifting an item from a store, followed by your using threats or brandishing a weapon while trying to flee. As a result, what would otherwise be charged as a misdemeanor gets escalated to a felony Second-Degree Robbery (California Penal Code section 212.5(c)) charge.

In fact, it also gets charged as a Strike Offense (California Penal Code section 667(a)&(b)); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”).

Theft Crimes Convictions – Shoplifting Offenses

California Penal Code section 459.5 (Shoplifting)

A misdemeanor conviction hereunder will get you up to six months in jail.

A felony conviction, however, will result in a prison term of one-and-a-quarter years, two years, or three years pursuant to California Penal Code section 1170(h)(1) (Felony Prison Term Not Specified).

California Penal Code section 211 (“Estes Robbery”)

This felony conviction can result in a prison term of two years, three years, or five years.

In addition, a conviction of this offense is considered a “Strike” under California’s Three Strikes Law. See Strike Offense (California Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”)).

This means that even if this is your first Strike conviction, you’ll still technically have to serve at least 85% of your sentence even with good behavior before you’re eligible for parole.

More realistically, however, our clients currently or recently released from prison tell us that because of overcrowding and Covid, Strike offenders are getting out after completing only two-thirds of their term with good-time credits.

Defenses to Theft Crimes Charges -- Shoplifting

The Judicial Council of California, which includes the Chief Justice of the California Supreme Court, has articulated the following defenses to the crimes discussed above:

  • You were trying to retrieve an item that you believed had been wrongfully taken from you. Even if you were mistaken, you were truly convinced that the item you shoplifted actually belonged to you (“claim-of-right” defense);

  • You never actually entered the subject business;

  • You did enter the business but only after it was closed before or after its regular business hours;

  • You did enter the business during its regular business hours but at that time, you didn’t intent to steal anything;

  • You never threatened or used force against any store employee while shoplifting.

See CALCRIM number 1703 (“Shoplifting -- Pen. Code § 459.5”).

See also CALCRIM number 1863 (“Defense to Theft or Robbery: Claim of Right”).

Example of a Theft Crime – Misdemeanor Shoplifting

State Legislator is Convicted of Misdemeanor Shoplifting for Stealing from Niemann Marcus in S.F.

On or about October 24, 2011, three-term California congresswoman Mary Hayashi (then in her mid-40’s) was arrested for felony Grand Theft (California Penal Code section 487) after a security guard grabbed her while Hayashi was strolling out of a high-end department store in downtown San Francisco with approximately $2,500 worth of pilfered clothing.

Her attorney put on a game defense, claiming that because of her brain tumor at the time, she had inadvertently left the store without paying. No doubt this convinced the DA’s Office to offer her a nolo contendere plea to misdemeanor Shoplifting (California Penal Code section 459.5).

On or about January 5, 2021, she accepted the plea and received 36 months of informal probation, a restitution order, court fines and fees, and was required to stay approximately 20 yards away from the department store for the entire duration of her probation term.

See: pleasantonweekly.com.

Example of a Theft Crime –  -- Felony Shoplifting

Canyon Country Man Gets Almost 50 Years for a Second Estes Robbery Conviction at Home Depot

In the early ‘90s, Jeff Bueno (then age 22), a resident of Canyon Country, was sentenced on a conviction for Voluntary Manslaughter (California Penal Code section 192(a)) for his involvement in a gang-related shooting.

The length of his prison term remains unclear, but presumably it was for at least five years in light of the Gang Enhancement special allegation (California Penal Code section 186.22).

In 2009, he received another felony conviction for an Estes Robbery” (California Penal Code section 211), aka Second-Degree Robbery (California Penal Code section 212.5(c)). This conviction, and presumably a second lengthy prison term, stemmed from his physical altercation with a security guard after shoplifting something from a commercial establishment.

Five years later, in early March 2014, while on parole for that second conviction, he got into another fight – this time with two security guards – after shoplifting items from a Home Depot in Palmdale. Once again, he was arrested and charged with an Estes Robbery.

In addition, drugs were found on his person so he was also facing a misdemeanor charge for Possession of Methamphetamine (California Health and Safety Code section 11377).

Not one to remain idle behind bars, while awaiting trial, in mid-January 2015, he picked up a new felony charge of Aggravated Battery Causing Serious Bodily Injury (California Penal Code section 243(d)).

Bueno’s eventful string of crimes presumably came to an end when at the end of Aug. 2016, he received forty-seven years in a California penitentiary.

See: da.lacounty.gov.

A Sampling of Theft Crimes -- Shoplifting Cases Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

“Vincent” Facing Almost a Decade in Prison for Estes Robbery; Result: Diversion & Dismissal

People v. V.J. (Downtown courthouse – Jan. ‘20):

“Vincent” was arrested by LAPD after attempting to steal a sixer of Budweiser from a local convenience store. Unfortunately for Vincent, he threatened the establishment’s employee with a sharp object after the latter tried to block his exit.

As a result, in lieu of a standard Shoplifting (California Penal Code section 459.5) case, Vincent was now facing an Estes Robbery” (California Penal Code section 211).

Even worse, he was also being charged with a Strike Offense under California Penal Code section 667(a)&(b) and California Penal Code section 1192.7(c) (“Serious Felonies”).

Therefore, his total potential prison sentence was nine years. Indeed, since he had several Theft convictions on his juvenile record, he could very well have received the maximum.

(Although juvenile records are typically sealed once the defendant turns 18, they will nevertheless be used against you if you are sentenced for future convictions as an adult.)

Fortunately, LADALF’s leader Ninaz Saffari was able to convince both the prosecutor and the judge to give Vincent a second chance by allowing him to go into in-patient rehab.

Result: The court allowed Vincent to complete Mental Health Diversion (California Penal Code section 1001.36), to be followed by dismissal.

Pre-File: “Paula” Facing Three Years in Prison for Grand Theft Shoplifting; Result: Informal Diversion Followed by Dismissal

People v. P.W. (Los Angeles Int’l Airport Cthouse – Apr. ‘16):

“Paula” was then an extremely promising young woman in her early twenties who had recently matriculated from UCLA and was celebrating her acceptance to numerous graduate schools. Unfortunately, she went to a high-end dept. store in Beverly Hills where she was captured on camera walking out with a designer bag worth thousands of dollars.

By the time she hired the Los Angeles Defense Attorney Law Firm, a Beverly Hills police detective had not only been investigating her for the theft, but had just referred the matter to the DA’s Office for prosecution as a Grand Theft (California Penal Code section 487) case.

Fortunately, Ninaz was able to convince the detective to give Paula a second chance after she presented him with the results of LADALF’s own investigation. The detective then got on board with Ninaz’s entreaties to the Deputy DA assigned to ultimately dismiss the case.

Result: Ninaz worked out an “offer and compromise”, which meant that Paula would immediately make full restitution to the dept. store in exchange for the dropping of the criminal case once she successfully completed Informal Diversion (California Penal Code section 1001.94; California Penal Code section 1001.95) (which she did).

Pre-File: “Michael” Facing Two-and-a-Half Years in Jail for Five Counts of Petty Theft; Result: Case Dismissed

People v. M.C. (Los Angeles Int’l Airport Cthouse – Dec. ‘20):

“Michael” was wrongfully and falsely accused by his former lover of having stolen multiple items on numerous occasions within a finite period in the recent past.

Each of these alleged thefts were for items valued at less than $950, and therefore were ultimately charged by the Los Angeles City Attorney’s Office as five counts of misdemeanor Petty Thefts (California Penal Code section 486; California Penal Code section 490.2). As a result, he was facing a maximum of 2.5 years in the county jail.

Notably, since these Petty Thefts were part of the same scheme against the same victim, the prosecutor could have transferred the file to the DA’s Office, which then could have aggregated the theft amounts, then charged him with at least one felony count of Grand Theft (California Penal Code section 487).

Fortunately, he hired the Los Angeles Defense Attorney Law Firm, which conducted its own investigation, the results of which strongly indicated the former lover had lied about her accusations. LADALF presented these results to the prosecuting Deputy City Attorney.

Result: All charges dismissed.

The Los Angeles Defense Attorney Law Firm (LADALF)

Since March 2005, when LADALF’s founding Los Angeles criminal defense attorney Ninaz Saffari first began practicing criminal law, including during her first four years working as a Deputy PD in the largest Public Defender’s Office in the U.S. (LA County’s), she has successfully defended hundreds of clients against virtually every type of theft charge, including Shoplifting and Estes Robberies.