Section 1800 | CALCRIM (Jury Instructions)

1703. Shoplifting (Pen. Code, § 459.5)
The defendant is charged [in Count
] with shoplifting [in violation
of Penal Code section 459.5].
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.
To decide whether the defendant intended to commit theft, please refer
to the separate instructions that I (will give/have given) you on that
crime.
The defendant does not need to have actually committed theft as long as
(he/she) entered with the intent to do so.
[A person enters a structure if some part of his or her body [or some
object under his or her control] penetrates the area inside the structure’s
outer boundary.]
[A structure’s outer boundary includes the area inside a window screen.]
New August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To instruct on the necessary intent to commit theft, see CALCRIM No. 1800, Theft
by Larceny.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
•
Elements. Pen. Code, § 459.5.
•
Burden for Consent Defense Is to Raise Reasonable Doubt. People v. Sherow
1139

promise is not enough to establish the falsity of a promise. (People v. Fujita (1974)
43 Cal.App.3d 454, 469 [117 Cal.Rptr. 757].) The intent to defraud at the time the
promise is made must be demonstrated. As the court in Ashley stated, “[w]hether the
pretense is a false promise or a misrepresentation of fact, the defendant’s intent must
be proved in both instances by something more than mere proof of non-performance
or actual falsity.” (People v. Ashley, supra, 42 Cal.2d at p. 264 [court also stated that
defendant is entitled to instruction on this point but did not characterize duty as sua
sponte].)
See the Related Issues section under CALCRIM No. 1800, Theft by Larceny.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 13, 70.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
CALCRIM No. 1804
THEFT AND EXTORTION
1170