Defending a Shoplifting Case

Posted By Richard Muir || 15-Apr-2014

If you are accused of shoplifting, here are some important things you need to know:

Is shoplifting a felony or a misdemeanor?

Assuming the amount of the items taken from the store is under $950.00, shoplifting is considered petty theft, which is a misdemeanor. There are three ways, however, that a shoplifting case can be elevated to a felony:

  1. If the amount of the theft exceeds $950.00, the case can be filed as a grand theft, which is a felony;
  2. If the individual charged with the theft has at least three prior theft convictions in which the person served at least one day in jail on each case (satisfied by the initial booking procedure), the new shoplifting case, even though the theft is under $950.00 and would normally be a misdemeanor, can be filed as a felony, and
  3. If the prosecution can prove that the person entered the store with the pre-conceived intent to commit a theft inside the store (by their admissions, or for example, carrying into the store a bag used to conceal the merchandise), then the individual can be charged with the felony of commercial, or 2 nd degree, burglary, on the theory that the store's implied consent to enter the store to pay for the merchandise is deemed voided by the individual's purpose in entering the store to steal their merchandise, so that the entry to the store is unlawful in its inception, thereby constituting a burglary.

The most immediate adverse consequence of a shoplifting case being treated as a felony is that the person will be arrested rather than just issued a citation and at least $25,000.00 bail, the bail schedule for that type of crime, will be set. However, all three of the felony charges described above are "wobblers," and can be filed as misdemeanors even under the felony statute which prescribes a possible prison sentence. Petty theft, like most misdemeanors, carries a maximum of six months in custody, whereas a "wobbler" felony offense filed as a misdemeanor carries up to one year in custody.

What Happens During a Shoplifting Arrest

Assuming none of the three felony situations described above apply and the person is accused of a shoplifting offense amounting to nothing more than a petty theft, the first concern of someone in this situation is whether he or she will be arrested. The law enforcement officer called to the scene by store security has broad discretion as to whether to arrest the person or merely issue the person a citation. In my 43 years of handling these types of cases, I can find no rhyme or reason as to why an officer chooses to arrest one individual accused of shoplifting yet choose to issue a citation to another individual under similar circumstances. Some of the factors I feel may enter into this decision are:

  1. The total amount of the theft (the smaller the amount the greater the chance the officer will use the citation process rather than effectuate an arrest)
  2. Whether the responding officer is at the end of his shift (he does not want to be bothered by the extra work that booking a shoplifting suspect will entail)
  3. The individual's "rap" sheet (if it shows a prior criminal record the person will likely be arrested rather than cited), and
  4. The particular policy of the law enforcement agency involved (some police departments have unwritten policies to arrest everyone on shoplifting cases, leaving the officers no discretion).

Whether a person is arrested or merely issued a citation may have significance later in the case, as most prosecutorial agencies and most courts require, as a condition of a petty theft plea of guilty, that a person be "booked" in the jail – a process that takes about three hours – in order to create a chargeable "prior" for future use.

Civil Compromise in California Shoplifting Cases

On misdemeanor offenses, California law allows a criminal case to be "civilly compromised," that is if the accused person makes restitution to the victim, the victim can ask the court not to proceed against the individual criminally, i.e. the case then can be dismissed. Most large stores, however, are reluctant to civilly compromise shoplifting cases for fear the prosecutorial agency will no longer process their cases criminally because of the waste of their time and manpower.

A related issue is the store's demand for monetary compensation from the accused shoplifter to offset the costs of the store's security system. California law allows stores to seek up to $500.00 compensation for this expense and stores will typically send someone charged with shoplifting a demand letter for anywhere from $350.00 to $500.00. Paying this amount does not civilly compromise the case because a store representative would still have to come to court to request a dismissal which, as previously indicated, they are reluctant to do.

When my clients typically get such a letter l immediately write the company's legal representative that due to the criminal case pending, my client's Fifth Amendment rights preclude him from responding, at least until the criminal case is resolved, which buys us a little extra time so hopefully later in the case a negotiated settlement for a lower amount can be worked out. If the client chooses to just ignore the store's demand, they will threaten to sue him in small claims court, an option some stores will not exercise due to the time and expense involved. A word of caution and advice on the issue of discovery.

"Discovery" in Shoplifting Cases

A person charged with a crime has an absolute right to all relevant material bearing on his case this is called discovery. Most large department and big box stores are equipped with surveillance cameras. Usually a person suspected of shoplifting is monitored on these cameras. Sometimes the responding law enforcement officer is provided copies of these tapes by the store, sometimes not. It is critically important for the attorney representing the accused shoplifter to request copies of these surveillance tapes, as oftentimes they can help the client's case. For example, most store security officers will characterize the suspects movements inside the store as "suspicious" yet the surveillance tapes may not demonstrate any conduct on the part of the suspect that could be so construed. This not only bolsters the client's defense but calls into question the credibility of the store security officer.

Another important discovery issue is that usually the store security officers will pressure the suspect to sign a waiver of liability document where the suspect basically admits he stole the merchandise, and renders the store harmless from a lawsuit. These documents rarely are turned over to law enforcement and are not included in the "discovery" packet provided counsel, but a demand should be made that they be produced by the store, as the suspect's refusal to sign these documents can bolster his innocence. For obvious reasons, a person accused of shoplifting should never sign anything provided to him by store security, as there is no legal obligation to do so.

Another important bit of advice to someone detained by store security on suspicion of shoplifting-do not resist store security in recovering their merchandise. California law permits store security personnel reasonable efforts to recover their merchandise, and inasmuch as under most circumstances, store securely personnel are considered private citizens, they are not bound by the Fourth Amendment on search and seizure rules, which only apply to government agents, such as police officers. But there is a more compelling reason not to resist store security-any physical application of force, or threat of force, against the security officers can provide the basis for a strong-arm robbery charge, which is not a wobbler and carries potentially serious prison consequences. You do not want to elevate a simple misdemeanor into a serious felony.

What can an attorney do for a client facing shoplifting charges?

Now having said all of this, what can an attorney do for someone accused of shoplifting in the typical case where the person is actually guilty of stealing items from the store? Most prosecutorial agencies will offer a form of "diversion" if the total value of the merchandise taken is relatively small – usually under$100.00 – and the defendant has a clean record. The defendant will be required to perform about 40-50 hours of community service and complete an anti-theft course, which can be taken online. Once proof of satisfaction of these obligations is provided, the case can be reduced to an infraction, which will avoid the defendant having a criminal record. The fine for an infraction is less than $250.00 and there is no period of probation. If the above-described option is not made available to a defendant, another favorable resolution would be to have the charge reduced to trespassing. Although it is a misdemeanor, this offense would not require booking," and by agreement of the parties, can be reduced to an infraction at a later time. Most importantly, it is not, like petty theft conviction, considered a crime of "moral turpitude" which could adversely affect an individual's ability to obtain a professional license such as required in real estate and teaching, or obtain a security clearance, or impair an individual's ability to obtain employment.

While on the surface, a shoplifting charge may seem like a simple case, it is not. The immediate consequences of a petty theft conviction may not seem that onerous but it can really hurt a person "down the road" in future years. Although the conviction can be set aside under Penal Code 1203.4 after the successful completion of probation--usually three year--most prospective employers are aware of this relief and will look at the original conviction and hold it against the applicant. For all the foregoing reasons, it is advisable and prudent for anyone facing a shoplifting charge to seek competent, experienced counsel to represent them-it can make a significant difference in the outcome of the case.