DAs, retailers say California needs tougher retail theft law

Spurred by a recent run of large-scale smash-and-grab robberies, prosecutors and retailers are pushing back on assertions by California's governor and attorney general that they have enough tools to combat retail theft in the wake of a voter-approved easing of related laws.

"We cannot function as a society where we have told people over and over again that there is no consequence for stealing other people’s property," said Vern Pierson, immediate past president of the California District Attorneys Association and El Dorado County's district attorney.

The complaints came as authorities on Friday announced what they said was "one of the largest retail theft busts in California history," a haul of $8 million worth of merchandise stolen from San Francisco Bay Area retailers including CVS, Target and Walgreens, along with $85,000 in cash and nearly $1.9 million from various bank accounts.

While shoplifting has been a growing problem, recent large-scale thefts in California and elsewhere in which groups of individuals brazenly rush into stores and take goods in plain sight are "raising it to a whole new level," said California Retailers Association President and CEO Rachel Michelin.

"We feel a little bit like we’re under assault," she said.

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National retail groups last month estimated the annual losses to be in the tens of billions of dollars. Some states’ attorney generals are supporting a congressional bill that would require more prevention efforts by large online marketplaces, where experts say many of the stolen goods are fenced.

The thefts have become a political issue as well, particularly in California, where critics place blame on progressive policies like Proposition 47, a ballot measure approved by 60% of state voters in 2014 that reduced certain theft and drug possession offenses from felonies to misdemeanors.

California Gov. Gavin Newsom and Attorney General Rob Bonta separately argued Wednesday that police and prosecutors still have the legal tools to go after such perpetrators, and Newsom called out some local officials he said choose not to do so.

"It’s patently false to assert that we have enough laws on the books that are fixing this problem, because it’s obviously not going away and won’t be going away," countered John Kabateck, director of the California chapter of the National Federation of Independent Businesses.

Yet arrests are happening and the five people who pleaded guilty in the massive bust Bonta announced Friday did so under existing laws to various felonies, including conspiracy to commit organized retail theft, receiving stolen property and money laundering.

The crimes involved date from 2018 to 2020, highlighting that while the current spike in brazen theft is gathering attention, it's not a new phenomenon.

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San Mateo County Sheriff Carlos Bolanos said the five busted were part of a network "responsible for an international distribution center" that funneled merchandise stolen in retail thefts, robberies, commercial and residential burglaries to other countries, with the money returned to the United States.

Bonta said the pleas "should serve as a warning shot to anyone thinking about participating in organized retail theft and committing brazen crimes."

The lead defendant in the case will be sentenced to six years in state prison, but the others face far lighter penalties including probation and a suspended prison sentence.

Meanwhile, Los Angeles authorities on Thursday announced 14 arrests in 11 recent smash-and-grab robberies. And San Francisco District Attorney Chesa Boudin last week charged nine people with looting targets including Louis Vuitton and other Union Square retailers.

Newsom has repeatedly said prosecutors can "stack" multiple misdemeanor thefts into a felony charge. But Pierson, the district attorney, said that "reveals a significant misunderstanding of the law in the wake of Prop. 47."

Subsequent court decisions require that the repeated thefts involve the same victim and conduct eventually amounting to a loss exceeding $950, which Pierson said "is very difficult to prove."

"The law here in California is very clear — we cannot simply stack petty thefts into a felony," he said.

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Will Matthews, a spokesman for Californians for Safety and Justice, which sponsored Proposition 47, cited penal code sections for receiving stolen property, organized retail theft, conspiracy, grand theft or aggregating crimes that he said provide "multiple avenues" for filing more serious charges.

"Unfortunately, too many of our law enforcement leaders ... are choosing to play a blame game," he said.

A law firm that has worked with the prosecutors' association last week introduced a ballot measure that would allow up to a year in jail for anyone who previously was twice convicted of various thefts.

"Brazen retail theft, auto theft, porch piracy, and other similar crimes are out of control," asserts the initiative proposed by attorney Thomas Hiltachk.

But 62% of California voters last year rejected a broader effort to roll back portions of Proposition 47 and other recent laws easing criminal sentences.

"Californians have made clear multiple times that they want to see us prioritize our investments on crime prevention over continued investments in failed incarceration," said Matthews.

Though Newsom and Bonta defended current law as adequate, the retail association's Michelin praised the governor's aides for reaching out to her last week to see if more should be done.

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She thinks there may be common ground in restoring a "carrot and stick" approach that would let shoplifters enter diversion programs in lieu of jail.

"Many times they're homeless, they have additional problems, but there’s no reason for them to go out and take advantage of services. They’ll just continue to shoplift," she said.

Those lower-level thieves in turn are often recruited by retail theft organizers, experts say. And in another affront to brick-and-mortar stores already battling online sales, the stolen goods often are then sold online.

It's a double-whammy particularly for small businesses that can't afford increased security, said Kabateck: They are struggling this year with supply chain shortages only to see products they do receive stolen off the shelves.

Newsom said blaming Proposition 47 is too simplistic and pointed to consistently lower property crime rates since the measure took effect seven years ago.

That's because few retailers report the crimes, Pierson and Michelin said separately.

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"I know on the retail side they’re underreported because if someone’s coming and stealing under $950 — I’ve heard this multiple times — there’s no reason; law enforcement doesn’t have the resources to come out and do anything. And if they do they’re just going to write them a ticket," Michelin said.

She's proposing to work with her members and Newsom's administration next year to better collect that data, because right now "even the stores don’t know because a lot of times they just let them go."