I have spoken with several people who have asked what the differences between petty theft, shoplifting and burglary are. While all these theft crimes are related, how they’re charged, what the prosecution must prove and the consequences vary, depending on the charge.
Petty Theft (Penal Code section 484 or 488)
This is a “basic” theft of anything under $950 in value. Petty theft is a misdemeanor – the maximum possible sentence is six months in county jail and/or a fine of $1,000. In addition to the other consequences I’ve written about before, the main consequence of a petty theft is that it is “priorable.” What that means is that if you are convicted of three petty theft charges and are sentenced to at least one day in jail, then get arrested for another petty theft, the new case can be charged as a “petty theft with a prior” under Penal Code section 666.
Petty theft with a prior (Penal Code section 666)
Even if a theft is of a low dollar amount, a second (or more) a petty theft charge can be a felony if you have a prior convictions for theft. The law changed recently – it used to be that with one prior theft conviction, a second petty theft could be a felony, but now petty theft can only be charged as a felony under this section if you have three prior theft convictions (with some other exceptions). Any prior theft can be that prior – such as petty theft, grand theft, vehicle theft or burglary. It doesn’t matter how long ago the prior conviction is – it can still make a new petty theft a felony charge. This section is actually what’s known as a “wobbler” in California law. That means it can be charged as a felony (carrying up to 3 years in state prison) or as a misdemeanor (up to one year in county jail). The decision to file the charge as a felony or a misdemeanor is up to the D.A. If it is filed as a felony, the judge can (but doesn’t have to) reduce it to a misdemeanor.
Grand theft (Penal Code section 487)
Grand theft is any theft of goods or services over $950. (There are some exceptions, such as theft of a firearm or vehicle of any value is grand theft.) Grand theft is another “wobbler” charge that can be either a felony or a misdemeanor. No prior conviction is required to charge a grand theft case as a felony if the D.A. wants to.
Burglary (Penal Code section 459)
In the context of theft, burglary is entering a structure (any building) with the intent to commit a theft inside. For example, suppose you were standing outside Mervyn’s department store and said to yourself, “I think I’ll go in and steal a pair of jeans,” then you stepped inside. That is the crime of burglary – entry in to a building with the intent to steal. Even if you didn’t actually steal anything! Obviously, the D.A. would never be able to prove a burglary case if all you did was step in a building with the intent to steal. Often, the D.A. will charge burglary in a “shoplifting” case if they think they have enough evidence that you intended to steal before you went in the store. They will try to show this by whether or not you had tools or a method to steal when you went in (such as wire cutters to remove security tags). If somebody is caught shoplifting and they have no money or other ways to pay for the things they took, the D.A. will try to charge burglary and say they “must have” intended to steal, since they had no money when they went in, so how were they going to buy anything?
Commercial burglary (second degree burglary) is also a “wobbler” offense and can be either a felony or a misdemeanor. Residential burglary (first degree burglary) is entering a residence with the intent to steal or commit a felony inside. First degree burglary is a felony and cannot be reduced to a misdemeanor. It also can be a “strike” under California’s “three strikes” law.
Most importantly, every theft offense requires that the prosecution prove a specific intent to steal. If they cannot prove that beyond a reasonable doubt, they cannot prove the charge. Often in shoplifting cases, the security personnel from the store will make certain assumptions about what you were doing in the store, leading them to a wrong conclusion that you intended to steal. Keep in mind – store security are not required to give Miranda warnings if they ask you any questions. That only applies to questioning to the police. That doesn’t mean you have to talk – even if they don’t give you the Miranda warnings, you still have the right to remain silent.
Each case is unique. Motions to suppress evidence, throw out statements given to the police and other defenses in your case may be available. Because theft offenses carry potentials consequences on your future, they deserve to be fought aggressively.
Most importantly, trying to keep this case from becoming a conviction on your record is what I try to achieve for all my clients. If you are not convicted, it is not something that will have to be disclosed on background checks, employment applications, etc. The only way to know what options you have is to discuss your case. There’s never a charge for an initial consultation.