Information on the crime of possession of a shopping or laundry cart without permission is found in the California Business & Professions Code at § 22435.2 (BP 22435.2). This article presents an overview of CA BP 22435 laws, including penalties and common defenses to BP 22435 crimes.
To begin, there are several varieties of BP 22435, including Removal of Shopping / Laundry Cart (BP 22435.2(A)); Unlawful Possession of Shopping / Laundry Cart (BP 22435.2(B)); Possess Shopping / Laundry Cart with Altered Serial Number (BP 22435.2(C)); Abandon Shopping or Laundry Cart (BP 22435.2(D)); and Tamper with Shopping or Laundry Cart (BP 22435.2(E)).
Note: The penalties for the various BP 22435.2 crimes are identical, and the common defenses related to the various BP 22435.2 crimes are very similar. Therefore, for brevity, the focus of this article focuses on the most common BP 22435.2 allegation, which is Misdemeanor BP 22435.2(B)-M: Possess Shopping/Laundry Cart.
BP 22435.2(B) Law
Per Business and Professions Code 22435.2(B), it is unlawful… to be in possession of any shopping cart or laundry cart that has been removed from the premises, or the parking area of a retail establishment, with the intent to temporarily, or permanently, deprive the owner or retailer of possession of the cart (BP 22435.2(B) Abbrev.).
Possession Defined: Under California law, possession of a shopping cart (or laundry cart) may be established in one of two ways: actual possession, or constructive possession.
Actual possession of a shopping or laundry cart occurs when the defendant is caught with the shopping cart ‘on his person,’ such as when the defendant is pushing the shopping or laundry cart. Constructive possession of a shopping or laundry cart occurs when the defendant has ability to control the shopping or laundry cart, but the shopping or laundry cart is not otherwise in his immediate physical presence.
Actual Possession Example: David takes a shopping cart home from the grocery store. While pushing the shopping cart to his house, David is stopped by a law enforcement officer and cited for BP 22435.2(B). In this scenario, David has actual possession of the shopping cart.
Constructive Possession Example: David takes a shopping cart home from the grocery store. David puts the shopping cart in his garage and goes to the laundromat. While at the laundromat, David is recognized by law enforcement as the suspect who took the shopping cart from the grocery store. David is cited for BP 22435.2(B). In this scenario, David has constructive possession of the shopping cart because he has the ability to control what happens to the shopping cart.
Multiple Defendants: More than one defendant may be charged with a violation of BP 22435.2(B), even if the subject of the criminal charge includes only one shopping / laundry cart and on only one occasion. This is because multiple people may have joint constructive possession of a shopping cart or laundry cart.
Note: A criminal allegation of BP 22435.2(B) does not preclude the criminal charging of other related offense. For example, the defendant may be charged simultaneously with both Possession of a Shopping Cart (BP 22435.2(B) and theft of a shopping cart (PC 484).
Important: PC Business & Professions Code 22435.2(B), it does not matter if the defendant intended to return the shopping cart or laundry cart to the retailer or laundromat. All that is required to prove the crime is that the defendant intended to temporarily deprive the retailer of the shopping cart or laundry cart.
BP 22435.2(B) Penalties
Jail Sentence: Possession of a shopping or laundry cart is classified as a misdemeanor crime. If found guilty of BP 22435.2(B), the defendant could face up to 180 days in the county jail (maximum jail sentence).
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. A probation sentence is a common alternative to a jail sentence in BP 22435.2(B) cases. However, a probation sentence is not guaranteed after a conviction for possession of a shopping cart or laundry cart.
A probation sentence in any BP 22435.2(B) case is called “informal” probation, or “summary” probation. This means that the court will monitor the supervision of the defendant during the probationary period, as opposed to a felony probation officer.
Probation Terms: Probation terms are a condition of probation (assuming the defendant is granted probation after a BP 22435.2(B) conviction. The terms of probation in a possession of a shopping cart or laundry cart case can include work release, the payment of court fees, restraining orders from the store or laundromat where the cart was acquired by the defendant, remain out of trouble during probation (i.e., no felony or misdemeanor convictions), and more.
Note: Whether a defendant granted a probation sentence, as opposed to a jail sentence, after a conviction of BP 22435.2(B) depends on many factors, including the defendant’s criminal history, the level of sophistication used in the offense, the remorse shown by the defendant, the term of any negotiated plea bargain between the defendant and the district attorney, the ability of the defendant to serve a probation sentence, and more. For more information, see Misdemeanor Probation.
Additional Penalties: In addition to the penalties listed above, the direct and indirect penalties of a conviction for BP 22435.2(B) include, the loss of immigration status, the loss of a professional license (i.e., dentist, teacher, lawyer, etc.), the loss of military service opportunities, court fines and fees, restitution ordered against the defendant, civil lawsuits (for replacement of the shopping cart or laundry cart), criminal protective orders, and more.
BP 22435.2(B) Defenses
There are many defenses to a criminal charge of possession of a shopping cart / laundry cart. These defenses include insufficient evidence to prove the defendant’s guilty beyond a reasonable doubt, statute of limitations (one years from the date the defendant acquired the shopping / laundry cart), mistake of fact, necessity, Miranda Rights violations, illegal search and seizure of property to discover the shopping cart or laundry cart, insanity defense, and more.
Example: David sees a shopping cart on the side of the road, and he decides to take the cart back to the store from where it originated. While pushing the cart to the store, David is spotted by law enforcement and cited for BP 22453.2(B). At court, the district attorney has no evidence to rebut David’s claim that he was only returning the cart. Result: There is insufficient evidence to prove that David is guilty of BP 22435.2(B).
In addition to the defenses listed above, which could apply to many types of criminal charges, the legislature has carved out defenses that are specific to BP 22435.2 allegations, including:
Violations of BP 22435.2(B) do not apply to a retailer, agent, or owner or a retail establishment, who has written permission (consent) to be in possession of the shopping cart or laundry cart (BP 22435.4)
The shopping cart or laundry cart must clearly indicate the cart’s owner. The retailer must also reasonably notify the consumer that removal of the cart from the property is a violation of law, including the posting of a phone number or address for return of the shopping or laundry cart (BP 22435.1 Abbrev.).
Cart Abandonment: It is not a defense to claim that a shopping cart was abandoned by either the retainer or another person, so long as the shopping cart identifies the owner of the cart and there is a number or address on the cart where the finder of the cart may return the cart to the true owner.
Example: Joseph is homeless. Joseph finds a shopping cart in a field, and it appears old and abandoned. David uses the shopping cart to hold his personal belongings. When David is cited for BP 22435.2(B), he states that the cart was abandoned and that he did not take the cart from the lot of a retailer. Result: There is a rebuttable presumption that the retailer did not abandon the shopping cart, and so long as the cart clearly indicates its owner, then David is guilty of BP 22435.2(B).
Judicial Diversion: Judicial diversion is available in BP 22435.2(B) cases. Judicial Diversion is a process whereby the defendant circumvents (avoids) criminal prosecution by submitting to certain conditions placed upon him by the criminal court judge. If the defendant fulfills the conditions of judicial diversion, then his criminal charge of possession of a shopping cart or laundry cart is dismissed.
Note: Judicial diversion is not a true defense in the sense that the defendant’s criminal charges are dismissed because the evidence is insufficient to find him guilty beyond a reasonable doubt. Rather, judicial diversion is a probation-like sentence results in dismissal of the BP 22435.2(B) charges, but only if the defendant first fulfills the conditions of the court (i.e., pay fines, stay of trouble for a period of time, etc.). For more information, see Pretrial Diversion & PC 1001.95.
For more information on the crime of possess shopping/laundry cart, or misdemeanor BP 22435.2(B), contact our California criminal defense attorneys for a free consultation. Our defense attorneys have helped hundreds of defendants charged with misdemeanor and felony violations and we can help you too.
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