Offense
Shoplifting
Aggravated Felony (AF)
Not AF (6-month max, not a taking)
Section 666.1 punishes 459.5 as a wobbler if D has two prior designated convictions, but it should not be an AF even with a year’s sentence.
Crime Involving Moral Turpitude (CIMT)
Should not be a CIMT, but misd 496 or 530.5 are safer.
Plead specifically to property “intended” to be taken, not property “taken,” and see Advice.
Other Removal Grounds
No other removal ground.
Advice and Comments
CIMT: In a burglary case the Ninth Circuit held that making a lawful entry into an open business with intent to commit larceny, but with no requirement of a taking, is not a CIMT. 1
The Ninth Circuit held that commercial burglary, PC 460(b), is not a CIMT even if the intended offense is larceny, because burglary requires only a permitted entry into a commercial building with bad intent. It does not require attempted or completed larceny. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1104-05 (9th Cir. 2011) and see further discussion at Advice to PC 460(a). Because PC 459.5 has the same elements, it too is not a CIMT. (Note that in both burglary and shoplifting, “larceny” is defined by PC 484(a). People v. Gonzales, 2 Cal. 5th 858, 872 (2017).)
(Categorical approach experts may wonder why the court in Hernandez-Cruz discussed burglary with intent to commit larceny, because California burglary has been held not to be divisible between “larceny or any felony” or among the felonies. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) The answer is that Hernandez-Cruz was published in 2011, before the Supreme Court issued clarifying opinions on the categorical approach which then were followed by Rendon. See ILRC, How to Use the Categorical Approach Now (2021). Fortunately these older burglary opinions provide specific rulings on California shoplifting, an offense that did not exist until Prop 47 was passed in 2014.)
PC 459.5 has the same elements: entry into an open business with intent to commit larceny not exceeding $950, no requirement of a taking,2
Section 459.5 does not require a taking. As the California Supreme Court stated, “Burglary and shoplifting do not require any taking, merely an entry with the required intent.” People v. Gonzales, 2 Cal. 5th 858, 872 (2017). The jury instructions for shoplifting, CALCRIM 1703, provide: “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant entered a commercial establishment; 2. When the defendant entered the commercial establishment, it was open during regular business hours; AND 3. When (he/she) entered the commercial establishment, (he/she) intended to commit theft.” There is no requirement of a taking.
Like burglary, shoplifting is not even an “attempted” larceny because it does not require a “substantial step” toward committing the offense. The Ninth Circuit held that commercial burglary with intent to commit larceny is not attempted larceny, noting that “entering a commercial building in no way corroborates a criminal purpose to commit a theft offense, much less strongly so.” Hernandez-Cruz v. Holder, 651 F.3d at 1104.so it should not be a CIMT.
Factual basis: value of property “intended to be taken.” To best protect D, create a careful factual basis. In discussing the $950 limit, 459.5 refers to “the value of the property that is taken or intended to be taken.” Refer specifically to the value of property “intended to be taken,” not property that was taken. If taken property appears in the record, ICE likely will assert that taking is an element and likely will win this fight against an unrepresented person. (Immigration counsel faced with such a record should be able to win; see endnote above.)
Alternatives. If avoiding a CIMT is critical, consider options such as PC 32, 496, 530.5. Stay with a prior 460(b) conviction, rather than reducing it to 459.5 under Prop 47. See PC 460(a), above.
LRA Mandatory Detention: Assuming it’s not a CIMT, 459.5 is normally a fairly safe immigration plea. But a conviction or pending charges for shoplifting will trigger mandatory detention under the 2025 LRA, for immigrants who have not been admitted into the U.S. Mandatory detention means the person will be imprisoned and ineligible for bond throughout their removal proceedings.
Alternatives that should not cause mandatory detention or match other removal grounds would be PC 602, 32, 496, or 415. ICE may argue that PC 496 also triggers mandatory detention; there are strong arguments that it does not (see advice to PC 496) but these are hard for a detained, unrepresented client to present See further discussion at Overview: Mandatory Detention. (Note that regardless of LRA, people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: As a straight misdemeanor, law enforcement cannot notify/transfer to ICE. See SB 54 advisory at www.ilrc.org/crimes-summaries.