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RayAnswers, Lawyer
Category: Criminal Law
Satisfied Customers: 41063
Experience:  licensed attorney in criminjal law for 30 years
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I asked earlier about the prosecution of a shoplifter, who

Customer Question

I asked earlier about the prosecution of a shoplifter, who was arrested outside an nationwide retail store; the loss prevention men stated they remembered the accused from 5 or 6 months ago, and also stayed there was a videotape which may or may not have been shown to the arresting officers.
Suppose it's 4 months later, 3 months ago discovery was given to the defense, sans video.
The final step of preliminary hearing is in another 6 weeks. (3 court dates have occurred after the arraignment).
You advised that the defense ought to make motion for exclusion of tape, sanctions against prosecution, and (or??) motion to have charges dropped.
If you heard the defense has done nothing, would this worry you? Could putting off doing anything be a strategy? What if the defense was paid a flat fee for everything up to the pre-lim, and would ask for more at that point in time, as it was "going to trial", the point many attorneys re-assess the payment structure.
Does procedure let an attorney bring the motions you suggested at the first preliminary hearing? Or is the timing not important, or is it proper to bring them at the second prelim?
As a layperson I'm looking at the court dates (twice) which were simply requests for more time, and I'm wondering why a piece of discovery could be withheld for so long and be legal, especially since this mega chain has it on a computer, and could attach it to an email in 15 seconds. The most portable and most easily duplicated item is intentionally being withheld; there's a blog online by a former loss prevention "chief" who states "the defense will be lucky to get the video at all, if they do get it, it will be right before trial is to begin". Who is dropping the ball here, in your opinion?
And, can the police arrest someone if the Loss prev employees only have their word and their memory to attest to the guilt of the accused? Would the police be wise to arrest the suspected shoplifter, whose crime supposedly was committed 6 months earlier? Now add in that the person is on parole or has a spotty record. Why on earth would they withhold proof of guilt?
Lastly, the blogging ex-store detective states videos alone aren't used to arrest or prosecute, because if it were the only evidence then.. THE TAKING, HIDING, AND ENTIRE TIME THE SUSPECT IS IN THE STORE UP UNTIL HE EXITS WITH ITEM , MUST BE SHOWN UNINTERRUPTED AND UNOBSTRUCTED BY ANY PERSON OR ANYTHING... Which this LP expert says is almost impossible to have that quality of video; the LP blogger also says eye witness testimony is also not enough by itself for the exact same reason. Unobstructed and uninterrupted view, is rare. Is this legally true? Does the shoplifter have to be viewed so thoroughly, if he/she is not arrested after leaving with an item, but much later?
Submitted: 10 months ago.
Category: Criminal Law
Expert:  RayAnswers replied 10 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Expert:  RayAnswers replied 10 months ago.

Your lawyer should seek such discovery or alternatively to dismiss the charges.They need either/or video of the theft or someone that observed it happen.If they lack this evidence and they may well do so then you can seek dismissal of the charges. A recollection here of something that happened six months aog is not relevant to what happened on the date in question from which you were charged.You would want your lawyer to seek such information ahead of trial to seeif charges can be dismissed here.

I appreciate the chance to help you today.Thanks again.

Expert:  RayAnswers replied 10 months ago.

California Shoplifting Laws. 490. Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. ... A violation which is an infraction under this section is punishable by a fine not exceeding two hundred fifty dollars ($250

Expert:  RayAnswers replied 10 months ago.

California law punishes shoplifting as theft (California Penal Code § 484). Theft refers to actions including feloniously stealing, carrying away, or otherwise appropriating someone else's property, with the intent to deprive the rightful owner of that property. Theft in California is broken up into two basic categories - petty theft and grand theft - based on the dollar value of goods stolen. A person with multiple prior offenses may also be subject to more stringent penalties under Penal Code section 666.

Expert:  RayAnswers replied 10 months ago.




Petty theft: theft of property valued at less than $50 with no prior related convictions

Infraction (This may also be charged as a misdemeanor at the discretion of the prosecutor, see misdemeanor penalties below)

Fine up to $250

Petty theft: theft of goods valued at less than $950

Misdemeanor (Some offenses may be charged as infractions, see above)

If charged as a misdemeanor, mandatory fine between $50 and$1,000 and/or up to six months of jail time for first time conviction of petty theft of retail merchandise

Grand theft: theft of goods valued at $950 or greater or theft of a firearm

Misdemeanor or felony

If the charge was based on stealing a firearm, jail time for 16 months two years, or three years; in other situations, incarceration up to one year

Expert:  RayAnswers replied 10 months ago.

Your lawyer should also be asking about diversion.

California provides pretrial diversion programs to certain individuals accused of first-time or low-level crimes as an alternative to prosecution. Those who are eligible for diversion and who apply for a program in their county will generally have to fulfill certain court mandated requirements, such as community service and making restitution. Upon successful completion, the criminal charges will be dismissed.

Thanks again and the best here.You may get this dismissed if they lack evidence or at least diversion as a plea deal.