Can You Be Charged & Prosecuted For Accidentally Shoplifting?

What is Shoplifting?

To begin, we must first understand what shoplifting is. According to California Penal Code sections 484 and 488, shoplifting, otherwise known as petty theft, is prosecuted as a misdemeanor and is defined as taking personal property of another valued at $950 or less, without the person's consent and with the intent of permanently depriving the owner of the property. If the value of the merchandise exceeds $950 then the charge is Grand Theft, which can be prosecuted as a misdemeanor or a felony.

Shoplifting means taking merchandise from a commercial establishment without paying for it (Penal Code section 459.5). Here is an example:

Marty goes into a phone store and approaches the counter. There, he picks up one of the phones and slips it into a shopping bag. He then leaves the store without paying for the phone. He is stopped outside and approached buy Loss Prevention personnel who escort him back into the store. Marty may be arrested and charged under California's shoplifting law.

In Los Angeles, theft is sometimes charged together with commercial burglary. Commercial burglary is defined as the crime of entering a commercial establishment with the intent to commit a crime in the place entered.

What is Accidental Shoplifting?

So can shoplifting be accidental? The answer is YES. Accidental shoplifting occurs when the person taking merchandise from the store did not really intend to deprive the store owner of their merchandise. The whole issue on whether shoplifting is accidental revolves on “intent.” Taking property or merchandise from a store by mistake or accident is not considered theft/shoplifting.

Let's be clear about this. Accidental shoplifting does not apply to people who intended to steal something but use the “accidental excuse” once they are caught. Instead, it refers to those people who truly made a mistake, forgot to pay for the items, and who did not have the intent to deprive the store owner of that merchandise.

How Accidental Shoplifting May Occur

Below is an example of how accidental shoplifting may occur:

Mary walked into a store and filled her basket with items, but a couple of small items fell inside one of the larger ones. The cashier doesn’t notice this and scans only the large item. After Mary pays and leaves, she notices the items were not paid for. Once Mary realizes those were overlooked by the cashier, she should return to the store immediately and pay for the items.

This clearly appears to be a mistake and would be a defense to a shoplifting charge if Mary was prosecuted for shoplifting. What if the security cameras in the store captured evidence making it look like those items were purposely concealed? This could be a problem for Mary because the concealing of the items would be evidence (indirect) that she planned to steal the merchandise.

Below is another example:

Joe is carrying an item he intended to pay for, but absent-mindedly walked past the cash register and went outside to take a phone call. To a Loss Prevention officer, if a person has exited the store with merchandise, they have committed shoplifting and can be criminally charged.

If there were no videos or witness statements stating that Joe was concealing merchandise in his clothing or in another shopping bag, Joe would have a reasonable and believable defense to his theft charge.

Possible Legal Defenses

Ultimately, the determining factor in shoplifting cases is intent. Unfortunately, “it was an accident” or “I did intend pay for it" are excuses that loss prevention professionals and prosecutors hear all the time and will not be a successful defense unless the totality of the evidence pointed to a mistake or to an accident.

When video evidence is involved, the main thing Loss Prevention and prosecutors will focus on is the behavior of the customer while in the store, shown by store video and observations made by Loss Prevention staff. If the customer is seen selecting some merchandise and concealing that merchandise on their person or in another shopping bag, or if the customer takes off or switches price tags while in the store and then walks past the cashiers, he/she is likely to be arrested and charged with shoplifting.

Only the alleged offender knows of his or her own intent, making it almost to prove the incident was an accident or a mistake. Ultimately, whether you meant to pay or not, if you attempt to leave a store with unpaid merchandise and are caught, you will likely be criminally charged. For this reason, it is wise to hire an attorney who has experience handling complex criminal defense cases.

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