California’s Civil Demand Letter for Shoplifting: Penal Code 490.5 PC
California’s Civil Demand Letter for Shoplifting: Penal Code 490.5 PC
California’s statute that authorizes a law firm or company to send a civil demand letter to a person accused of shoplifting is enshrined in Penal Code 490.5 PC. Such a letter demands payment for any losses the targeted retailer incurred as a result of the crime.
A demand letter may order payment of up to $500 to cover such costs as the item stolen, any damaged merchandise, and any employee or loss prevention officer that had to tend to the shoplifting matter. The recipient of a demand letter is strongly advised to contact a criminal defense lawyer for advice before responding. It’s not advisable for a person to make any payments in response to a civil demand letter. No matter how well meaning, that payment could equate to an admission of guilt. Furthermore, a payment does not prevent the store from filing criminal charges or a civil lawsuit.
The connected offense, shoplifting, is a crime in California per Penal Code 459.5 PC. An individual commits the offense when he or she enters an open business with the intent to steal merchandise worth $950 or less. This is a misdemeanor offense under California’s criminal legislation.
This offense is punishable by time in county jail for up to six months and/or a maximum fine of $1,000.
The California criminal defense attorneys at Spodek Law Group will spotlight the following in this article:
What exactly is a civil demand letter?
In the context of a shoplifting matter, a civil demand letter is when the store (or the lawyer representing the store) sends the individual accused of stealing and demands payment for any losses that the store incurred due to the shoplifting charge. This is often the course of action a store owner will take even if the merchandise was recovered and not damaged.
As it’s name implies, a civil demand letter involves a civil action (as opposed to a criminal one). Therefore, any payment given to the store is a form of civil recovery.
According to Penal Code 490.5 PC, a store can ask for these things in a civil demand letter:
– the cost of the item or items that the shoplifter took, or attempted to take (if the store was unable to recover that item),
– the cost of merchandise that was damaged, and
– the expense connected to a store employee or a loss prevention officer that handled the shoplifting case.
California law permits retailers to ask for up to $500 in losses from a person accused of shoplifting. This is regardless of how much the item that the shoplifter took or tried to take actually cost. In cases where the shoplifter was a minor, the defendant’s parent or legal guardian shall be jointly and severally liable to the retailer along with their child.
Although you are advised to refrain from responding without legal counsel, you should not totally ignore a civil demand letter. If a shoplifter does this, PC 490.5 authorizes the targeted retailer to file a case in small claims court against the offender.
What should an individual do upon receiving a letter?
The first thing a recipient of a demand letter should do is contact a criminal defense attorney for legal advice. Counsel will likely advise his or her client not to act rashly in response to a letter and make a payment. The reason for this is that a quick payment may act as an admission that a person is guilty of a crime.
Furthermore, note that even if a person remits a sum of money in response to a demand letter, that does not preclude a store from filing criminal charges or a civil lawsuit against them.
In practice, a lawyer may be able to work with a store to negotiate a lower payment and also remove the risk that it will initiate a criminal case or a civil claim.
What is shoplifting pursuant to Penal Code Section 459.5?
The California law that makes shoplifting a crime is Penal Code 495.5 PC. According to this statute, a person is guilty of an offense when he or she enters an open business with the intent to steal merchandise worth $950 or less.
In other words, shoplifting is going into an open business intending to commit the crime of petty theft, sometimes referred to as retail theft.
The criminal offense of shoplifting was enshrined by the voter initiative Proposition 47 in 2014. Before the passage of Prop 47, the act that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary. Shoplifting is usually charged as a misdemeanor. This offense is punishable by confinement in county jail (as opposed to state prison) for up to six months and/or a fine of up to $1,000.
What does the term “shopkeeper’s privilege” mean?
Pursuant to California law, the “shopkeeper’s privilege law” says that shopkeepers, or store owners, may detain a shopper if they have probable cause or reasonable grounds to believe that this shopper is guilty of shoplifting.
The criteria for this detention must be for a reasonable amount of time and used strictly for the purpose of investigating the possible shoplifting offense. Whether or not a detainment is “reasonable,” or for a reasonable period of time is a determination the court makes on the basis of all of the facts of a specific case.
According to PC 490.5, a “shop owner or merchant” is an owner or operator of any store space that is purposed for the purchase or sale of any personal property capable of manual delivery.
Are retailers allowed to use force in detaining a shoplifter?
Yes, a retail store owner does have the legal right to use force in detaining an alleged shoplifter. The shopkeeper’s privilege permits a store owner to use a reasonable amount of non-deadly force on an alleged shoplifter that is necessary to protect him or herself and prevent the suspect from escaping from the store while awaiting the arrival of the police.
For more guidance or to discuss your case with a criminal defense attorney, we invite you to reach out to our law firm at the Spodek Law Group. Our lawyers provide free consultations, and we represent clients throughout the State of California.