All petty theft cases can have long term consequences. Because of that it is important for a defendant to get the best possible result in court to minimize the damage. Here we break it down for you.
Petty theft or shoplifting in California, can lead to jail time. But a few days of jail time may not be the worst consequence of a theft conviction.
Petty Theft, Theft, and Embezzlement are crimes in a special class called “Crimes of Moral Turpitude”, which generally means “crimes involving dishonesty”. This status means that a criminal record with a theft conviction is a red flag for any potential employer.
Most US employers evaluating potential employees will automatically disqualify a person with a recent theft conviction because it is a crime of moral turpitude. And a theft conviction can keep a person from getting a professional license such as one for a real estate agent or bank employee, or even a security clearance.
A theft conviction record can be publicly visible on background investigation reports for ten years or more.
It gets worse if you are not a US citizen. A petty theft conviction, whether as an infraction, misdemeanor or felony can be considered a “CIMT” by the US Federal Government that can cause denial of Permanent Residency status, Deportation or Denial of Entry into the US.
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As a result, there is no such thing as a truly “petty” theft conviction. To the defendant in denial it may seem like a $17 joke. To the smarter defendant that cares about his/her future, it is a serious danger to future opportunities. |
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Theft cases can be charged by the issuance of a citation (promise to appear); by a Complaint filed by the local Prosecutor in the County’s Superior Court; or by Indictment by a grand jury. Theft charges can be infractions, misdemeanors, or felonies, depending on the facts and the defendant’s criminal history. But charges can be added, removed, changed or amended after the start of the court case.
Even where it looks bad, not all cases that start as theft, end in a theft conviction. There are ways to prevent the damage of a theft charge. And the vast majority of criminal cases end with a plea agreement or settlement that changes the nature of the final charges.
The Basics of a Shoplifting or Petty Theft Charge under Penal Code sec. 484 / 488 .
Most cases of alleged shoplifting and theft of items under $1000 value are charged in one of County Superior Courts. The charges come as violations of California Penal Code section 484 and/or Penal Code section 488, filed with the court and prosecuted by the District or City Attorneys (in most courts).
In some cases the charges start out when a law enforcement officer issues a citation, and then files it with the court. In some other cases, a private citizen will issue the citation (which is really a summons) and then file it with the court to start the case.
The “private citizen” I am talking about is the retail security guard. Private citizens can affect an arrest and issue a citation legally if they witness a crime. And when a security guard at Target or Wallmart issues a citation from the store, without law enforcement involvement, it is really a type of citizen’s arrest.
The 2 common penal code sections of theft define the different types of theft. Most people accused are charged with both these violations as misdemeanors to start a case. Each carries a maximum penalty of 6mos – 1 year in the county jail, plus fines of somewhere around $1500.
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If a person has prior convictions for theft, there may be an extra charge of violating Penal Code section 666, which can be a felony theft charge (theft with prior(s)).
A second or third offense can be very serious and lead to prison time, even if the item stolen is a piece of pizza.
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There can also be related charges. If a defendant intended to steal at the time they entered the store, a Burglary charge applies. This happens often when a defendant admits to going in to a store with her/his friend to grab something and run. Burglary is basically defined as an illegal entry into a building with the intent to commit a crime. And if you plan to enter a store an steal, you are not invited in – and therefore cannot enter legally to start with.
Conspiracy charges are often added at the first court appearance for cases where multiple persons are involved. A common example would be 2 girls enter store, get caught stealing, and then admit then went in together to steal. Those facts could start as a petty theft misdemeanor citation, and be later amended in court to include the separate crimes of 1) conspiracy and 2) burglary.
Because of these variable, there really are no simple theft cases. And to me, they always seem worse once all the facts are out than it seemed you first hear the client’s side of the story.
Any misdemeanor charge (in America) gives the defendant the constitutional right to a jury trial. This means that if the defendant wants a trial, 12 people from the community have to come in to court and vote Unanimously (all 12 together) to convict the defendant.
In cases where the charges include an intent to steal prior to entering a building, such as going to Home Depot with the intent to shoplift, the charges can include burglary. Burglary can be a felony or a misdemeanor, but almost always starts out as a felony.
Getting Charged After Arrest or Detention:
Generally, there are 2 common ways a person gets charged with petty theft or shoplifting in California:
1) getting arrested by an officer who was present when the alleged theft happened, or
2) being stopped and released with a citation for theft with a court date by an officer who was not present during the alleged incident, but who gets called to the scene by security personnel.
From a Defense Standpoint, getting charged by a private security guard’s citation where a law enforcement officer was not present is much better for the defense, because it means there is no officer to testify he or she saw the alleged crime. Instead, these cases require testimony of a private employee to convict, and that may be uncertain evidence. Unless the prosecution has clear video evidence.
In nearly all theft cases, the defendant will have a first court date called an “Arraignment” which is where the charges are read and where the defendant pleads guilty or not guilty. The Arraignment is also the date where the defendant can ask for the court to appoint a public defender.
It is almost never a good idea to plead guilty to a theft charge at the Arraignment. Even if you are guilty, you need time to review the evidence, and to see if there is any way to get a different outcome by negotiation with the prosecutor. And the courts are required to give you time to find and hire a private attorney if you ask for it.
Defense Attorneys will almost always recommend pleading not guilty to start, and requesting all available evidence and “Discovery” from the prosecutor on the first court appearance.
Usually, this “Discovery” includes the police report and / or witness statements, maybe video. Often, this info is provided to the defense for the first time during the Arraignment in open court (on the record). Sometimes, other discovery items must be picked up at the District Attorney’s office or City’s Attorney’s Office (prosecutors). There may also be evidence that must be obtained by subpoena, such as the surveillance video form the alleged “victim”. It may take weeks to get all of this evidence together and properly review it.
Yes, Walmart, Target, Macy’s, etc are all watching and recording your every move. It’s on video.
The only time pleading guilty right away makes sense is if the defendant is in custody of the jail and cannot post bail to get out, and there is no defense. In such a case, maybe it’s better to plead guilty and start doing time ASAP.
But most people charged with theft get out of jail right away on bail or on their own recognizance. If you are in jail right now, have your mom call the jail and find out: 1) what the bail is; and 2) when your first court date is (Arraignment). Then have her call a bail bond company or post the money to get you out. Exercise your right to remain silent.
If a defendant does jail time after a theft arrest, but before conviction, they are entitled to get credit for that time at the end if more time is imposed. The max penalty on a misdemeanor is a year in the county jail and a fine of $2000++, but many first offense Petty theft offenders get probation that includes a few days of jail time.
But it’s the label of the conviction that is more important than the penalty if you care about your future.
A defense attorney may consider asking for added jail time on a trespassing charge instead, and thereby save the client from the future damage of a theft conviction.
A defendant without an attorney can ask for more time to find and hire an attorney. If the defendant cannot hire a private attorney due to a lack of income, they should ask for a public defender.
Note about public defenders: Public Defenders are real attorneys, and they are almost always very good at their jobs. They are trial attorneys, and they know how the judges work. However, they get paid below market rates by the courts for very high case loads. Especially in a place like Alameda County. Can you imagine being a public defender in Alameda county! Holly crap they must be busy. And they are not available to everyone. People with jobs or assets of any kind are usually disqualified from the public defender. Counties are broke after all.
Paying an experienced, quality Private Criminal Defense Attorney to handle your theft case should result in more personal attention to your case. Don’t be afraid to ask the court for time to shop for an Attorney you trust and can afford. The court can “continue” the Arraignment to give you more time without requiring a “not guilty” or “guilty” plea. Getting more time is not difficult if you show up in court on time and ask for it.
Do not miss your Arraignment Date. If you received a citation, the date will be at the bottom of the citation next to your signature. If you were arrested, it is on the paperwork the jail gave to you. If you do not now your court date, call the criminal division court clerk now.
Goal of Plea Agreement is a Different Charge, Such as Trespassing or Disturbing the Peace:
Pleading guilty to a theft charge (Penal Code 484/488) at the first court date is rarely a good idea. Even if it seems obvious the defendant is guilty, there is work to do that may make a big difference later in life.
Most misdemeanor shoplifting cases end in a settlement, or “Plea Agreement”. Some get dismissed completely after arraignment (but that is rare). Some result in “not guilty” jury verdicts, (but that is really rare). But the real work on this type of problem is done in the plea negotiations.
In reality, the prosecutors want to get rid of misdemeanor cases fast, without a trial. And a defendant in a theft case can demand a jury trial. Jury trials require lots of work for everyone. This is leverage for the defense attorney. Because of this leverage, compromise Plea Agreements are common in petty theft cases, especially where there is a hole in the government’s case. A common hole is uncertain witnesses testimony in a case where the police officer was not present.
A misdemeanor plea agreement can be reached at any time before trial between the prosecutor and the defense attorney (or defendant without an attorney). Plea Agreements are really just settlements. The terms are (for example): 1) defendant will enter a guilty plea to a certain charge; 2) prosecutor will recommend a specific penalty.
If the judge approves the agreement, case is over and judge will impose the sentence. The prosecutor and defense attorneys are encouraged by the court to settle the case without a trial. A judge can veto a proposed plea agreement, but it is rare.
In order to convince a defendant to plead guilty and give up the right to a trial, a prosecutor will often offer a no jail sentence (on a first offense) and a “probation only” sentence. Many unknowing defendants without an Attorney will accept and plead guilty. But the bad news is they get stuck with a criminal theft record.
A skilled Criminal Defense Attorney can counter offer the prosecutor’s “probation only” offer with a “substitute charge offer”. This counter offer goes something like:
“Howz ‘about we change the theft to a Penal Code 415 (disturbing the peace) and plead guilty to that?”.
Usually, the attorneys would try to work it out in court informally. The prosecutor’s office may have a standard offer they through out to every defendant to start on a Penal Code 484 case. In some counties, it can be very routine. In Los Angeles County Superior Court, a common plea offer from the DA is “credit for time served” which means if you plead guilty, the sentence is satisfied by the time you already spent in jail.
In a place like Ventura County or Placer County Criminal Court, the standard offer for a PC 484 citation may be (for a first offender) “3 days jail time with 3 years probation, $1000 fine, and ordered to pay back the store”. It is also common that a court will order a defendant to stay away from the location of the alleged theft.
But from the attorney’s point of view: to get the best result for the client, the focus has to be on the label of the disposition of the case. Agreeing to be labeled a thief without thought is a bad idea for the client. Here is a proposed priority list when dealing with a Petty Theft Case:
Dismissal is best,
Disturbing the peace as an infraction (Penal Code section 415) is almost as good as a dismissal, and CA Penal Code section 490.1 (theft under $30 dollars) is a good substitute infraction if you have to accept a theft charge.
Trespassing misdemeanor (Penal Code sec 602(o) may be an option) better than theft, etc.
Can it be done without an attorney? Well, a person defending themselves could request a reduction to trespassing, PC 490.1, or a dismissal prior to trial from the judge. But it’s hard if you don’t know how. Here is a tip:
Make a PC 1385 Motion to Try to Get a Reduction on Your Own:
Penal Code section 1385 allows a judge to make just about any order that is in the interests of justice. A defendant can always make a request that something be done “in the interests of justice” and demonstrate good cause for the request – like – “I request that the Burglary charge be dismissed because there is no evidence I planned to steal when I entered the building.”. Point out that you decided to steal the 12 pack when you got pissed that they were out of mad dog 20/20. Wait. That might not be a good idea. Don’t say that. Hum….
Anyway, that is the principle. Get it?
I often seek to get Penal Code section 484 and section 488 charges reduced to trespassing (as a misdemeanor or infraction) or even disturbing the peace under Penal Code section 415, which can also be an infraction or a misdemeanor. Get the case reduced to an infraction is a victory in a theft case, because an infraction is not a crime.
It’s difficult for a defendant to do this on their own for several reasons: 1) the prosecutors are prohibited (in general) from talking directly to the defendant (so plea negotiations do not happen); and 2) a defendant without an attorney is unlikley to be able to actually have a jury trial without help.
How to Get Leverage for a Reduction Prior to Trial:
Defense Attorneys get leverage for plea negotiations by finding weaknesses in the prosecution’s case, and by making the prosecutors work more than they want to. Weaknesses can be found, and work forced upon the prosecutors by the process of “Discovery” and by “Active Motion Practice”.
Discovery is the process of demanding evidence from the government, such as witnesses statements, video, etc. Active Motion Practice means filing motions in advance of trial to limit the evidence, and weaken the prosecutor’s evidence. Common pre trial motions in Penal Code section 484 0r 488 cases include: 1) 1538.5 motion to supress evidence from illegal arrest; and 2) Motion to suppress statements by defendant because of Due Process violations (14th and 5th amendments).
Even if every motion is lost, some knowledge about the case if found, and prosecutor’s hours used.
Common Defenses to Theft:
Defendants in theft cases have the right to a jury trial. The government does have to prove the charges beyond a reasonable doubt. The jury must vote 12-0 to rule guilty.
The best defenses are:
1) I did not do it;
2) There is no evidence I did it;
3) I did not intend to do it; and
4) I intended to trespass and accidentally did it.
Defenses that do not work:
“I was intoxicated”
“I was going to pay for it later”
If a Theft Conviction is Unavoidable, Get It Expunged After Probation Ends:
It is not possible to get all theft charges reduced. Plea agreements happen and work out well for many people, but not for all. In those cases where a Theft conviction is unavoidable, there is a process available to clear the defendant’s criminal record. The process is known as “Expungement”.
Expungement happens when a defendant files a “petition for rehabilitation” with the court, and then the court approves it. In most cases, the court will approve the expungement if the defendant has completed probation with no violations, and no other arrests. However, sometimes it is possible to get it done after some minor violations.
Once the court approves the petition, the original case is “dismissed” from the court’s records, and the defendant does not need to disclose it to potential employers.
For more info on how to get a conviction expunged click here.
In summary: defendants charged with petty theft under penal code section 484 should not just walk in and plead guilty, even if it looks bad. There are ways to manage the damage the problem poses. By hiring a professional Attorney to work on your side, or by getting help from the public defenders office, you can give yourself the best chance to avoid a theft conviction.
Questions? Contact cdort@dortlaw.com or leave a comment. www.Dortlaw.com. Hire Attorney Dort to handle handle a shoplifting case and get the expungement done free. Mention this article.
