Editorial: Don’t prosecute shoplifting as robbery. Don’t do the opposite, either

Shoplifters and other petty thieves who should be charged at most with misdemeanors or diverted from the criminal system to treatment are sometimes unreasonably charged with robbery, a felony that could land them behind bars for two years or more. It’s a foolish misuse of the courts and incarceration, and kudos to state Sen. Nancy Skinner, a Berkeley Democrat, for trying to fix the problem with a bill currently moving through the Legislature. But Skinner’s Senate Bill 82 fixes more than it should. It needs some work.

The mess that gives rise to the bill was created in the early 1980s, when a man named Curtis Estes walked into a Sears store in Vallejo wearing a T-shirt and jeans and walked out wearing a lot more: a down vest and a corduroy coat that he had pulled off the rack and didn’t pay for. Having committed a commercial theft, Estes could have been charged with a misdemeanor and faced months in jail. But things escalated in the parking lot when he was confronted by a security guard and pulled out a knife to try to escape capture. Estes threatened to kill the guard, but he eventually gave up and was led back inside the store.

Was Estes just a petty thief? After all, wasn’t the crime complete when he left with the clothes, and wasn’t pulling the knife a separate crime (brandishing a weapon, which is also generally charged as a misdemeanor) that had nothing to do with the theft? Or had he committed robbery, a violent felony in which a perpetrator takes something from another by using force or fear?

These may sound like the kind of questions that keep first-year law students up at night, but they have real-world consequences. Misdemeanors result in jail time and criminal records that can be expunged. Felonies mean years behind bars and a “strike” that puts most professional licenses, higher education and even housing out of reach, even after the perpetrator has completed the prison time and turned his life around.

An appeals court ruled the crime was robbery, and in so doing, it created the concept of an “Estes robbery.” Over the next four decades, prosecutors used the precedent to charge more and more shoplifters with robbery even if they didn’t have weapons. For example, inebriated homeless men who lifted six-packs of beer from convenience store cold-cases and dashed toward the door, then pushed past security guards on the way out — no knife, no gun, just the push — were often charged with felonies instead of misdemeanors and faced years in prison. The push became the force or fear necessary to justify a robbery charge.

Skinner’s bill would create the misdemeanor of petty theft in the first degree, which would apply when anyone takes property worth $950 or less from another person or a store and does indeed use force or fear, but with no weapon and no resulting great bodily injury — no broken bones, black eyes or bloody scrapes.

That may be appropriate for the guy lifting the beer from the convenience store. But it could also apply to a street robbery, in which a man with a clenched fist raised toward his victim’s head demands a watch or a cellphone. It could apply to a thief with a rubber knife that looks all too real, or a finger in his coat pocket that he claims is a gun.

In 2014, Californians wisely adopted Proposition 47, which among other things raised the dividing line between misdemeanor and felony theft to $950. Reform opponents rail against the move, but they generally fail to note that this state still has one of the lowest felony thresholds in the nation. In 38 other states, the line is $1,000 or higher, and in some states, like Texas, it’s more than twice as high. If California is an outlier, it’s because its theft laws remain tougher, not softer.

But Proposition 47 was about property and drug crimes, not robberies that combine theft with physical assault. Texas makes pushing past a store employee a misdemeanor, but not threatening a person during a street robbery.

The shoplifter’s shove on the way out the door is one thing. There are in fact too many people currently in jail for Estes robberies who pushed or shoved when they shouldn’t have. But a theft that puts someone in fear of being seriously injured crosses a very different line, and it has little to do with the value of what was taken. SB 82 needs to take account of that difference.