Shoplifting: Proposition 47's Strange Addition to California's Law of Theft

California's Proposition 47 (Prop 47) reduces a number of California felonies to misdemeanors. I have already blogged that one of Prop 47's most extensive provisions, Penal Code section 490.2, reduces many forms of felony grand theft to misdemeanor petty theft. In that post, I purposefully avoided discussing shoplifting out of considerations of space. In this post, I hope to address Prop 47 shoplifting in the depth it deserves.

Proposition 47 adds the crime of "shoplifting" to the California Penal Code. This crime is now enumerated at Penal Code section 459.5, which states:

(a) Notwithstanding Section 459, 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. 

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

Prop 47 enacted this section in order to reduce most cases of commercial burglary from felony status to the level of misdemeanors. Before Prop 47, entering a commercial establishment with the intent to commit larceny was second degree burglary. This crime was a "wobbler" under Penal Code section 461, meaning that it could be charged as either a misdemeanor or a felony.

With the arrival of Penal Code section 459.1, however, many cases of second degree burglary are now shoplifting, rather than burglary. Section 459.1(a) requires shoplifting to be charged as a misdemeanor unless the defendant is a registered sex offender or has one of several specific, extremely severe prior convictions.

While the stated purpose of Prop 47 is to reduce the severity of punishment for certain crimes, and while the new shoplifting statute will certainly have that effect on many instances of burglary, section 459.5 is worded and structured in a way that leaves significant questions regarding how it is to be applied. Moreover, in light of the notably restrictive language of section 459.5(b), it is unlikely that prosecutors would ever charge a defendant with the crime of shoplifting.


Section 459(b): Mandating Prosecutors' Charging Practices

Subsection (b) of the shoplifting law requires prosecutors to charge certain crimes as shoplifting. This subsection is notable because rather than specifying that certain behavior is now criminal, it instead mandates prosecutors' charging behavior. Depending on how this law is to be interpreted, it could have very peculiar consequences.

Section 459(b) does not explicitly presume that charges are being filed before the subsection applies. On face, therefore, it appears that it would require a prosecutor to charge shoplifting when confronted with a factual scenario of somebody entering a commercial establishment during normal business hours with the intent to steal something.

This cannot be how the statute should be read, however, because it would result in some very strange and unpleasant situations. Here are a few examples:

Say a prosecutor is confronted with a situation where a person with no priors enters a store with the intent to steal a loaf of bread that costs three dollars. The person takes the loaf of bread, leaves the store without paying, but is caught by the store owner. The person then confesses to officers that they entered the store with the intention of stealing the bread. If the prosecutor were required to charge shoplifting in this situation (as a literal reading of section 459(b) would suggest), the prosecutor would be unable to exercise discretion and charge the crime as an infraction under Penal Code section 490.1 (since that would be charging for theft -- which 459(b) prohibits). Moreover, a strict reading of 459(b) would suggest that a prosecutor would be required to file charges, even if the prosecutor were inclined to file no charges. It would be strange if Prop 47 mandated such stringent charging practices.

Or, say that a prosecutor is faced with a different situation where the only evidence that a suspect entered an establishment with the intent to commit larceny is an improperly-obtained confession. The prosecutor may have enough evidence to prove theft. But if the prosecutor is aware of evidence that the defendant entered the establishment with the intention of committing larceny, would the prosecutor be required to charge shoplifting instead? Even if the prosecutor thinks that the evidence of the intent to commit larceny is inadmissible? Since a prosecutor would not be able to charge theft as an alternative to shoplifting (more on this later), this strict reading of section 459(b) would seem to require prosecutors to file charges that they would be unable to prove at trial.

In light of these nonsensical results, section 459(b) is properly read as requiring the charging of shoplifting only as an alternative to commercial burglary when a prosecutor is inclined to file criminal charges. This makes sense in light of Prop 47's goals, since it would avoid charging the shoplifting conduct as a felony. But it would permit prosecutors to charge theft as an alternative -- say, in cases where the evidence better supports a theft charge, or when a theft infraction may be warranted rather than misdemeanor shoplifting.

Shoplifting's Retroactivity

I have previously blogged about Prop 47's retroactivity. Prop 47 not only reduced certain crimes to misdemeanors following its enactment on November 5, 2014, it also sets up a process for reducing prior felony convictions to misdemeanors if those felonies would have been misdemeanors under the provisions of Prop 47. As I previously noted, this retroactivity only seems to apply to situations where people have been convicted of a felony and are serving or have served a sentence.

But as I pointed out in that previous post, shoplifting seems to be an exception to this general limit on retroactivity. Since subsection (b) of the shoplifting law requires prosecutors to charge shoplifting rather than commercial burglary, prosecutors charging crimes in the wake of Prop 47's passage are required to charge shoplifting committed before November 5, 2014 as shoplifting, rather than as commercial burglary.

While most criminal laws define the criminality of defendants' conduct, section 459(b), applies to the conduct of prosecutors. Because a prosecutor filing charges after November 5, 2014 is filing charges after the passage of Prop 47, section 459 has the odd effect of requiring prosecutors to charge defendants' actions before November 5, 2014 with violating a statutory provision that did not exist at the time of the defendants' criminal acts.

While the crime of shoplifting did not exist before November 5, 2014, for the most part, Penal Code section 459 does not increase penalties or criminalize behavior that was not already illegal. For these reasons, charging defendants with shoplifting committed before Prop 47's enactment will probably not raise constitutional concerns. But it is a quirk of the law that is worth noting.

Why Prosecutors Should Not Charge Shoplifting

All of this discussion of shoplifting may ultimately be inapplicable to most charges that are actually filed. Subsection (b) of the new shoplifting statute restricts prosecutors from charging defendants with burglary or theft in cases where defendants are charged with shoplifting. While this subsection will achieve the goal of preventing prosecutors from charging many defendants with felony burglary, it will most likely lead to prosecutors' refusal to ever charge shoplifting -- especially when the rest of Prop 47 is taken into account.

Shoplifting is typically more difficult to prove than petty theft. In a petty theft case, a prosecutor must prove that a defendant stole and carried away the property of another with the intention of permanently depriving the other party of that property. To prove that a defendant committed the crime of shoplifting, the prosecution must prove that a defendant entered a store with the intent of committing larceny.

While a defendant may enter a store with an intent to commit larceny, but ultimately not steal anything, there is typically not enough evidence to charge the defendant with entering the store with that intent unless the defendant steals or attempts to steal something. Accordingly, if a prosecutor has enough evidence to charge a defendant with shoplifting, the prosecution probably has enough evidence to charge the defendant with theft. Charging both crimes together would be strategic, since a jury may be unwilling to find that a defendant had an intent to commit larceny, but may still find sufficient evidence that the defendant committed theft.

Under Penal Code section 459(b), however, prosecutors are not permitted to charge defendants with both petty theft and shoplifting. That subsection prohibits prosecutors from charging a defendant with the theft of property when a defendant is charged with the shoplifting of that same property. Therefore, a prosecutor must choose between charging a defendant with shoplifting or with theft.

Prosecutors should prefer charging a defendant with theft rather than with shoplifting. In theft cases, prosecutors do not need to prove that a defendant intended to steal something when the defendant entered the commercial establishment. If there is evidence that the defendant took something and carried it away, that defendant can be charged with theft -- even if the defendant is caught before he or she is able to get away from the store.

Moreover, as I have noted in a previous post, Prop 47 involved the enactment of Penal Code section 490.2, which effectively classifies the theft of anything valued under $950 and more than $50 as misdemeanor petty theft. Defendants who are sex offenders, or who have certain, severe priors may be charged with a felony for section 490.2 petty theft. All of this means that Penal Code section 490.2 calls for the same punishment as shoplifting, but does not require proof that the defendant entered a commercial establishment with the intent to commit larceny.

Prosecutors should therefore charge defendants with Penal Code section 490.2 petty theft rather than shoplifting. The punishment for both crimes is the same, but the absence of a specific intent element in the statute governing petty theft makes it far less difficult for prosecutors to establish that a defendant is guilty of petty theft rather than shoplifting.

But is this strategic call consistent with subsection (b) of the shoplifting statute?

Earlier in this post, I concluded that Penal Code section 459(b)'s requirement that acts of shoplifting "shall be charged" as shoplifting must be read in a way that preserves prosecutorial discretion. This reading would avoid nonsensical and overly punitive results that would occur if the law were read to require the filing of shoplifting charges in cases where prosecutors were not inclined to file charges or when evidence of a defendant's intent to commit larceny is inadmissible.

In light of the strategic disadvantage prosecutors would face were they to file shoplifting rather than petty theft charges, it is unlikely that prosecutors would ever be inclined to file shoplifting charges. Should this strategic reality give more strength to 459(b)? It seems strange that Prop 47 would create a new law, only to have that new law never be applied -- and a tough reading of subsection (b) that would require prosecutors to charge shoplifting in more cases could avoid this strange result.

All of these questions make shoplifting one of the most peculiar provisions that Prop 47 enacted. The law's application to prosecutors' charging practices makes it different from most criminal laws, and it leads to the numerous questions I address in this post. Overall, however, it seems that shoplifting has achieved its goal of transforming many commercial burglary cases into misdemeanors -- whether they are petty theft or shoplifting cases. The law is not pretty, and could have been drafted in a far less confusing way, but it will probably achieve the desired result.