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Shoplifting Attorney – San Jose, San Mateo and Palo Alto, CA


Free Consultation for Petty Theft or Shoplifting in San Jose, Redwood City or Palo Alto

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California Shoplifting Laws: Petty Theft or Grand Theft?

Under California law including in Santa Clara and San Mateo counties, what is commonly know as shoplifting is classified legally as petty theft or grand theft. Petty Theft is charged in cases involving the theft of merchandise that is valued at less than $950, while theft of values over $950 is classified as grand theft.

Shoplifting can be charged for the taking of a pack of gum or an expensive bottle of alcohol. In addition to the value of the item, petty theft or grand theft charges will depend on factors such as whether the defendant has prior convictions.

gavelAccused of Shoplifting?  Follow These Five Rules

Rule #1: Shopkeeper’s Privilege is Real

There is an age old concept called “shopkeepers privilege” which allows a store with a reasonable suspicion of shoplifting to detain you and question you.  This privilege is codified in California law, but there are  limits. It is never reasonable for hired security called “Loss Prevention” (“LP”) to use too much force, hurt you, or run after you once you are off the premises. At some point if they think someone got away after shoplifting, they need to call the police. This is why, when we hear about our client’s cases, we listen for signs that Loss Prevention may have stepped out of bounds.  When we do find instances of excessive force against our clients, we fight these cases vigorously.  We are one of the few criminal defense firms in San Jose and the Peninsula that also handles civil rights abuse cases – and we will take the police to task when warranted.

As a policy, Loss Prevention in San Jose and around Silicon Valley can decide not to call the police, and they typically do this for infringing acts under a certain dollar amount (such as $50 or $25) and instead might issue you a no trespass notice and a demand for a certain fee up to $500. This is called a civil demand letter and usually states that you cannot come back to the store and should pay a fine.

If you hire our firm for your case, we will discuss a strategy that will help negotiate your civil demand fee down to about $100 or less.

Rule #2: Don’t Discuss Your Theft Case with Anybody

Hopefully, this advice to not discuss your shoplifting case is not too late!  While a loved one might realize you are charged with a crime, we strongly suggest that you only discuss this matter with your lawyer. This means that you should not discuss being arrested for shoplifting with anybody including your spouse, a police officer, Loss Prevention, your priest, your therapist, your friends or your employer. Keep in mind that when you are being accused, cited, or compelled to appear in court in a shoplifting case, you have no conviction related to the offense on the record.  At this point, there is generally no need to report this to employers, although there are exceptions which we will explain to you.

Rule #3: Be Cautious But Not Scared

“Am I going to go to jail? I heard the statute says up to 6 months!”

Facing criminal prosecution for shoplifting or petty theft is alarming for nearly everyone and we are often asked questions like this. Most of our clients are successful professionals who have never faced criminal charges and are not familiar with criminal law.

However, when our shoplifting clients are accused of relatively minor matters that are first time offenses, we can usually resolve the matter without jail time. Even when there is no discussion of jail time, there are other things we concern ourselves with such as:

  • Having a criminal record
  • Paying a fine
  • The limitations of being on probation
  • Immigration-related issues for our non-citizen clients

In some courts, we can help our clients avoid a record with a program called diversion.  Please call us to discuss whether diversion is appropriate for your case.

We have seen clients leave the state or avoid court and they end up risking arrest or loss of job prospects for having not dealt with a shoplifting charge up front. This is a relatively small matter that can be handled for a modest attorney fee, and it should be addressed as soon as possible.

Rule #4: “Loss Prevention” is At a Loss for a Broader Solution

Trained Security called Loss Prevention is there for a very specific purpose: to detain and then document what they view as an illegal taking of items from the store. Next they are tasked with processing the people who took the item and that usually involves calling the police.  They must ID people, detain them for a reasonable time, question them in a reasonable way, log items and amounts and report the theft to the retail company and many times the police.

Even though loss prevention has plenty to do, these are the kinds of inappropriate things our clients often hear from Loss Prevention:

  1.  “What country are you from, eh? We should send you back.”
  2.  “I knew you were going to steal when I saw you walk through that door?”
  3.  “Didn’t you see me follow you?”
  4.  “You should be ashamed of yourself.”
  5.  “Tell your kid to stop crying or I am going to have to get her taken away.”

“Where did we, as a society, decide do give extended moral authority backed by fear tactics to a foul mouthed security guard with basic training?  Who taught them that blaming others is part of their job?  Has anyone explained due process to them?  Or the fact that you are innocent until proven guilty? The best thing someone can do if they are accused of stealing is say nothing, behave and let loss prevention do their job.”
-Attorney James Dunn

We understand that many websites advocate civil compromise with the store, and clients commonly ask if we will call loss prevention and apologize.  There are specific times when civil compromise will keep a case out of court, and we will review that limited opportunity. Otherwise, we strongly urge people not to go back to apologize or beg for admission to the store without discussing the matter with an attorney first.

Rule #5: Find a Theft Defense Lawyer That Listens to You

Beating or mitigating a petty theft or shoplifting case may be one of the most important objectives in a client’s life.  It can prevent someone from losing professional opportunities down the road, or worse.  We represent people who are ordinarily clear-headed citizens who make a mistake.

In the legal world, you should be careful to understand what a petty theft case means to the law firm you are considering.  In general, smaller theft cases–where the defendant is accused of taking an item with a value in the hundreds of dollars–tend to be cases with a low level of liability. Not all lawyers take these charges too seriously because they are not seeing the context of such a case for their particular client. There is even a surprising attitude lawyers sometimes take when they talk over lunch. Over the years, we have heard that rare attorney say something to the effect of, “If I hear one more person tell me that they did not intend on taking the item out of the store, I’m going to…”

Avoid the jaded lawyer, the one who has lost their temperament and patience for the job.  The lawyer’s job is to listen closely, to hear the defendant out, and to listen to each individual case. Cases are like snowflakes. No two are alike. We understand what our cases, however small, mean to our clients. They are anything but snowflakes and more along the lines of a blizzard.

Even though the defense lawyer should listen, the defense lawyer’s job is also to identify what will be relevant and useful for a District Attorney or judge in a theft case.  His or her job is using relevant facts to solve your problem. When listening to your case, he or she might hear things you do not. So bear with us if we focus on factors that seem less relevant to you. Make sure all your questions are answered after consulting with a lawyer.

What are Civil Demand Letters?

Hypothetical #1

You were stopped in the store because you walked out with items. Possibly you are guilty, wanting to save a little money. And perhaps you just were distracted. The items amounted to $18.24 retail value and the store does not want to bother calling the police.

Hypothetical #2

Now imagine the same situation as described above, but the items were $562 in value and the store calls the police after detaining, searching and asking you questions about the incident.

Either way, the store will likely demand civil damages in an amount up to $500 plus costs. Let’s talk about what that means.

I wasn’t arrested. Why is the store demanding a payment?

Take in mind Loss Prevention need not involve the police to demand amounts in lieu of a small law suit.  Even if loss prevention does involve the police, they may request these amounts for civil liability.  The money is not for items, which often are returned or seized. It’s for the trouble and resources spent. Let’s look more closely at the penal code:

 PC 490.5 …”(c) When an adult or emancipated minor has unlawfully taken merchandise from a merchant’s premises…, the [person accused]shall be liable to the merchant … for damages of not less than fifty dollars ($50) nor more than five hundred dollars($500), plus costs. In addition to the foregoing damages, the adult or emancipated minor shall be liable to the merchant for the retail value of the merchandise if it is not recovered in merchantable condition, …. An action for recovery of damages,pursuant to this subdivision, may be brought in small claims court [if appropriate], or in any other appropriate court. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies.”

Two Key Points About Civil Liability for Theft 

This section states two important points:

  1. The store may seek damages up to $500 plus costs, and
  2. This small cause of action can be brought in any appropriate court, even small claims court.

The civil paper trail that follows is called a civil demand which would lead to a civil law suit. If you are dealing with a large retail store, they might ask you to pay in five days or face a high volume collections law firm.

I Returned These Items! Why Are They Charging Me? 

Take in mind the statute’s $500 is a civil penalty and is not for the value of the items. Additionally, they can obtain amounts for items destroyed or not returned.

The Store Gave Me Five Days to Pay a Random Amount.  What Happens if I Do Not Pay?

If a retail store such as Macy’s, Nordstrom or Target makes an immediate request and you do not  pay it, a typical next step is that you will received a Civil Demand letter from a law firm that only handles collections.  This could take 30 days and so long as you provided the correct address, waiting for such a letter is not an unreasonable course of action.

Explain Why Waiting Might Be Okay? Should I Negotiate A Civil Demand?

Receiving a lawyer’s letter from Fry’s or J.C. Penny might seem scary, but I prefer waiting for that letter and dealing with the law firm over the retail store, because they tend to understand the low value of their claim, and appreciate the potential for negotiation. One needs to understand the economics of bringing thousands of little legal cases to know how often these are brought to court. It might make good sense to settle the matter at some point though, rather than “taking the matter to court” as a judgment can ding your credit and few lawyers handle that defense without charging thousands of dollars.  Having said that, you might want to see if the law firm handling the civil claim would be willing to compromise on the fee.  When doing so, I would advise not talking about the incident but simply making a monetary counter offer.

This demand should have nothing to do with the criminal case, and paying the amount usually will not be used to show admission of guilt. The settlement should clarify that. There are ways to create a paper trail demonstrating your non-guilty intentions.  If you are a client of The Law Office of James Dunn, your attorney will advise you regarding this process.

What is the Difference between a Demand for Civil Damages and a Promissory Note.

When people who are stopped for theft admit to taking other items on prior occasions, they are sometimes told to return the items or pay back amounts owed.  While we do not advise that you sign any documents while being detained by Loss Prevention, if you do sign a promissory note, you have agreed to pay that amount back for items taken.

PUT SILICON VALLEY’S TOP DEFENSE TEAM ON YOUR SIDE

Senior Trial Attorney, James Dunn has a Superb Avvo Rating of 10.0 and has successfully resolved hundreds of shoplifting cases in Silicon Valley and the Peninsula.  Attorney Michelle Spaulding, a Harvard Law graduate is a skilled trial lawyer who understands every technique used to defend theft cases. Criminal Defense Attorney Robert Preskill, who has practiced law in the Bay Area for 14 years, manages the firm and insures that all case related details are handled promptly and properly.

You can trust in the representation of the legal team to fight for you. You can reach us 24/7 at
(650) 539-0809