Shoplifting laws and defenses after Prop 47 – Orange County theft defense attorney

With the recent passage of Proposition 47, there were some significant changes to the laws related to shoplifting.


Repeated Petty Theft is now only a misdemeanor.

The biggest is that now, no matter how many prior convictions for theft you have, a shoplifting petty theft is a misdemeanor.  Previously, if you had one prior theft conviction, a second theft – no matter how low the dollar amount – could be charged as a felony under Penal Code 666.  The law then changed to require three prior theft convictions (with a few exceptions), then a fourth could be charged as a felony.


Now, after Proposition 47, petty theft is a misdemeanor.  Period.  Yes, there are some exceptions for people previously convicted of “super strikes” (the most serious of felony offenses) or sex offenses, but in general, any theft of under $950 is now a misdemeanor.


Second Degree Burglary (Penal Code 459) is now only a misdemeanor if it’s a shoplifting burglary.

In the past, the police would arrest a person for a felony charge of second degree burglary for shoplifting.  How?  Because if they believed the person entered a structure (even a store open for business) with the intent to steal, it was burglary.  People were getting arrested for felony burglary, booked into jail and may have had to post bail because they were arrested on the felony charge.  Now, with the passage of Proposition 47, shoplifting burglary is now a misdemeanor.  If you entered a commercial establishment that was open for business with the intent to steal and then did in fact steal something, there is a new crime.  Penal Code 459.5 is now the crime of shoplifting.  The text of that code section reads:

“459.5. (a) Notwithstanding Section 459, shoplifting is defined a entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property is that 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 . . .”

It also says that “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.”


The change in the law of petty theft with a prior and second degree burglary doesn’t change the fact that a theft charge of any sort is never a good thing to have on your record.  There may be legal, factual or other defenses to an allegation of theft.  See my other post:  Is petty theft a big deal?


If you have been arrested or charged with any sort of theft offense, contact an experienced Orange County defense attorney right away.  There may be things that we do in order to get you in the best position possible for a good outcome.


Joe Dane

Orange County Defense Attorney


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