490.5 PC – Civil Demand Letters in Shoplifting Cases

Penal Code 490.5 PC is the California statute that authorizes a law firm or company to send a civil demand letter to you if you are accused of shoplifting. The letter demands payment for any losses the retailer incurred because of the crime.

A civil demand notice for shoplifting can order payment of up to $500 for the cost of such things as the item stolen, any damaged merchandise, and any employee or loss prevention officer that had to handle the shoplifting case.

You should contact a criminal defense lawyer for help if you receive a demand letter. If you make a quick payment in response to a letter, the payment could equate to an admission of guilt. Further, a payment does not prevent a store from filing criminal charges or a civil lawsuit.

Note that shoplifting is a crime in California per Penal Code 459.5 PC. You commit the offense when you:

1. enter an open business, and
2. do so with the intent to steal merchandise worth $950 or less.

Shoplifting is a misdemeanor offense under California’s criminal laws (as opposed to an infraction or a felony).

The crime is punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is a civil demand letter?
• 2. What should I do upon receiving a letter?
• 3. What is shoplifting, per Penal Code Section 459.5?
• 4. What is the shopkeeper’s privilege?
• 5. Can retailers use force in detaining a shoplifter?

1. What is a civil demand letter?

In the context of a shoplifting case, a civil demand letter is when the store (or the store’s lawyer) sends you a letter demanding payment for any losses that the store incurred due to your alleged shoplifting. This often happens even if the merchandise was recovered and not damaged.

As the name implies, a civil demand letter involves a civil action (as opposed to a criminal action) and any payment given to the store is a form of civil recovery.

Per Penal Code 490.5 PC, a store can ask for the following in a civil demand letter:

1. the cost of the item that you allegedly took, or attempted to take (if the store was unable to recover the stolen item),
2. the cost of any damaged merchandise, and
3. the expense of a store employee or a loss prevention officer that handled the shoplifting case.¹

California law allows retailers to demand up to $500 in losses. This is regardless of the cost of the item that you allegedly took or tried to take.²

If you were a minor at the time of the incident, your parent or legal guardian shall be jointly and severally liable to the retailer along with you.³

If you ignore a demand letter, PC 490.5 authorizes the targeted store to file a case in small claims court against you.⁴

2. What should I do upon receiving a letter?

Contact a criminal defense lawyer for legal advice if you receive a demand letter.

A defense attorney will likely advise you not to act rashly in response to a letter and make a payment. This is because a quick payment may act as an admission that you are guilty of a crime.

Further, note that even if you pay a sum of money in response to a demand letter, that does not preclude a store from filing criminal charges or a civil lawsuit.

Note also that an attorney may be able to work with a store to:

• negotiate a lower payment, and
• remove the risk that it will initiate a criminal case or a civil claim.

3. What is shoplifting, per Penal Code Section 459.5?

Penal Code 495.5 PC is the California statute that makes shoplifting a crime. Per this statute, you are guilty of an offense when you:

1. enter an open business, and
2. do so with the intent to steal merchandise worth $950 or less.⁵

In other words, shoplifting is entering an open business intending to commit the crime of petty theft (or retail theft).

The crime of shoplifting was created by the voter initiative Proposition 47 in 2014. Prior to the passage of Prop 47, the behavior that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary.

The offense of shoplifting is typically charged as a misdemeanor. The crime is punishable by:

• imprisonment in county jail (as opposed to state prison) for up to six months, and/or
• a fine of up to $1,000.⁶

4. What is the shopkeeper’s privilege?

Under California law, the “shopkeeper’s privilege law” says that shopkeepers, or store owners, may detain you if they have probable cause/reasonable grounds to believe that you are guilty of shoplifting.⁷

Note though that this detention:

• must be for a reasonable amount of time, and
• used solely for the purpose of investigating the possible shoplifting crime.⁸

Whether or not a detainment is “reasonable,” or for a reasonable period of time, is a determination a judge makes based on all of the facts of a given case.⁹

Under PC 490.5, a “shop owner or merchant” is an owner or operator of any store used to purchase or sell any personal property capable of manual delivery.¹⁰

5. Can retailers use force in detaining a shoplifter?

An owner has the legal right to use force in detaining you (an alleged shoplifter).

The shopkeeper’s privilege allows a store owner to use a reasonable amount of non-deadly force on you that is necessary to:

• protect themself, and
• prevent you from escaping from the store.¹¹

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Legal References:

1. California Penal Code 490.5 PC.
2. See same.
3. See same.
4. See same.
5. California Penal Code 495.5 PC.
6. See same.
7. California Penal Code 490.5f1 PC. See also People v. Carter (1981) 117 Cal.App.3d 735.
8. California Penal Code 490.5 PC.
9. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701.
10. California Penal Code 490.5g2 PC.
11. California Penal Code 490.5f2 PC.