Information on the crime of organized retail theft is found in the California penal code at section 490.4 PC. Essentially, organized retail theft occurs when a group of people, work together, to commit large scale theft crimes from retail stores and online markets (i.e., department stores, malls, drug stores, liquor stores, grocery stores, eBay, Amazon, etc.).
Example: David and Goliath agree (conspire) to steal high-end luxury purses from a local mall and sell the purses online. If David and Goliath go through with their plan, then they have both committed organized retail theft (PC 490.4). If they attempt to go through with their plan, but they are caught in the act of stealing the purses, then then they have both committed attempted organized retail theft (PC 664/490.4).
A person who conspires with another person to commit organized retail theft is guilty of PC 490.4 even if the planned theft never occurs (PC 182/490.4).
Example: David and Goliath agree (conspire) to commit the following: David will steal luxury purses from Louis Vuitton and then give the stolen purses to Goliath to sell on eBay. Their plan is to split the money they make on the sale of the stolen purses. However, after David steals the purses, Goliath does not want to go through with the plan: Result: Both David and Goliath may be charged with organized retail theft (PC 490.4), and Conspiracy to Commit Organized Retail Theft (PC 182/490.4). This is true even though Goliath did not follow through with his end of the plan.
Note: The law does not require that all persons who conspire to commit organized retail theft be charged with organized retail theft (PC 490.4(d)). For example, if David and Goliath conspire to steal purses and sell them on eBay, then either David and Goliath, or David or Goliath may be charged with PC 182/490.4.
Aiding & Abetting: A person who helps another person commit organized retail theft may be charged with PC 490.4 even if he or she is not the person who committed the theft of merchandise.
Example: David and Goliath plan to steal luxury purses from Hermès and Louis Vuitton stores. Their plan is that David will steal the purses and then Goliath will sell those purses to pawn shops for cash. Result: Both David and Goliath are guilty of organized retail theft (PC 490.4) and conspiracy to commit organized retail theft (PC 182/490.4).
PC 490.4 Punishment
Organized retail theft may be charged either as a misdemeanor, or alternatively as a felony, depending on the facts of the case ("wobbler" offense).
Essentially, when organized retail theft is committed on two or more separate occasions within a twelve (12) month period, and if the total value of the merchandise stolen, received, purchased, or possessed within that period exceeds nine hundred dollars ($900), then the crime may be charged either a felony, or alternatively as a misdemeanor.
Note: Whether organized retail theft is charged as a misdemeanor, or alternatively as a felony, depends on many factors, including the fact and circumstances of the case, the defendant’s criminal history, the sophistication level of the alleged offense, and more.
Felony Sentence: When organized retail theft if charged as a felony, the defendant may face up to sixteen (16) months, two (2) years, or three (3) years in the county jail (PC490.4-F).
A probation sentence, with or without some incarceration might also be available for felony convictions of PC 490.4 depending on the circumstances (See Probation Sentence below).
Note: Whether a defendant receives a probation sentence, a sixteen (16) month jail sentence, a two (2) year jail sentence, or a three (3) year jail sentence after a conviction for penal code 490.4 depends on many factors, including the disposition of any plea agreement between the district attorney and the defendant attorney, the presence of any mitigating or aggravating factors in the case, the defendant amenability to probation, the amount stolen, the defendant’s criminal history, and more.
Misdemeanor Sentence: When organized retail theft is charged as a misdemeanor, the defendant may face up to a year in the county jail (PC490.4-M). A probation sentence, without or without some incarceration might also be available for misdemeanor convictions of PC 490.4 depending on the circumstances of the case (See Probation Sentence below).
Probation Sentence: A probation sentence is a period of supervision, as opposed to an actual jail sentence. A probation sentence is allowed in both misdemeanor and felony PC 490.4 cases, but a probation sentence is not guaranteed. Whether a defendant receives a probation sentence after a conviction of penal code 490.4 depends on the facts of the case, the terms of any plea bargain agreement, the amenability of the defendant to serve a probation sentence, and much more.
Note: A probation sentence carries terms of probation that must be obeyed to remain on probation. These terms of probation usually include restraining orders to stay away from the location where the defendant committed the organized retail theft, among other conditions.
Felony probation for convictions of PC 490.4 is supervised or monitored by a felony probation officer. Misdemeanor probation, also called “informal” or “summary” probation, is monitored by the court. Non-compliance with probation terms can lead to incarceration (See Probation Violation Law).
Split Felony Sentence: Incarceration after a felony conviction of organized retail theft is served in a local county jail, as opposed to a California state prison. Additionally, the judge may allow the defendant to serve some portion of her jail sentence to be served out of jail and on work release.
Example: Maria is convicted of felony organized retail theft per PC490.4-F. The criminal court judge does not grant Marie probation, but the court does allow Maria to serve half of her jail sentence behind bars and the other half on work release.
Note: Incarceration and work release sentences are reduced by up to fifty percent (50%) in PC 490.4 cases, so long as the defendant serves his or her jail or work release sentence with good behavior (PC 4019).
Other Penalties: In addition to possible jail or work release sentences after a conviction for organized retail theft, possible direct and indirect penalties of PC 490.4 conviction can include loss of firearm arm rights, deportation from the United States for non-US citizens, loss of professional or occupational licensure, fines, court fees, civil lawsuits, restitution orders, criminal protective orders, military service consequences, and much more.
Note: Both misdemeanor and felony organized retail theft crimes are considered crimes involving moral turpitude, or CIMT. CIMT convictions result in greater consequences for non-US citizens and licenses professionals. For more information, see CIMT.
Organized Retail Theft Defense
Organized retail theft defense includes lack of conspiracy to commit organized retail theft, coerced confession, alibi defense, duress, entrapment, statute of limitations (3 years from the date of alleged offense), insufficient evidence to prove the defendant guilty beyond a reasonable doubt, impeachment of alleged DA witnesses’ credibility, jury nullification, and illegal search and seizure.
Example: David decides to steal luxury purses for resale on the internet. Goliath, who is not affiliated with David, sees David stealing the purses and decides to also steal purses. Result: both David and Goliath may be charged with theft (PC 484), but not organized retail theft (PC 490.4), because there was no conspiracy between David and Goliath to steal purses.
Note: It is not necessarily an organized theft simply because a mob of people steal from retailers or shopping malls. In some cases, such as when a group of people is looting (PC 463); there is not necessarily an agreement to steal that is made between persons who are looting.
For more information on California’s new organized retail theft law, or PC 490.4, contact our team of experienced and award-winning criminal defense attorneys for a free consultation. Our criminal defense attorneys have successfully handled hundreds of Inland Empire criminal cases, including theft crimes, sex crimes, drug crimes, assault crimes, murder, and more. Call today!
PC 490.4(a) Law (Abbrev.).
PC 490.4(a): A person who commits any of the following acts is guilty of organized retail theft…
Acts in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value (PC 490.4(a)(1)).
Acts in concert with two or more persons to receive, purchase, or possess merchandise…, knowing or believing it to have been stolen via organized retail theft (PC 490.4(a)(2) Abbrev.).
Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake… organized retail theft (PC 490.4(a)(4) Abbrev.).