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  1. #1
    Join Date
    Feb 2010
    Posts
    3

    Default Innocent Charged in Shoplifting - California

    My question involves criminal law for the state of: California

    My arraignment is on Tuesday, the 2nd of March. I will update this as it goes forward. This is a lengthy post but I feel the details are important.

    On Feb. 7th, 2010, I went grocery shopping with my son (23 months old) at Whole Foods. When I go shopping with my son, I have to be in and out before he acts out. I keep my hands free as much as possible in case he knocks things over, so no purse, just my credit card.
    While shopping I noticed that there was a significant price difference between organic ($2.99) and non-organic ($.99) broccoli. I made a note to myself to remember the prices and pay attention to the cashier screen because WFM had overcharged me on several occasions when I bought non-organic produce.

    As I continued shopping I noticed some scented oils that I liked that were on sale for $9.99, regularly $16.99. When I see something on sale for a great price I usually buy more than one, so I took the last four vials. I attempted to put them in the cart but saw that the size of the vials was smaller than the holes in the cart. I could not put them in the cart. I could not put them next to my toddler, because he would just toss them out of the cart. I attempted to push the cart while holding on to the four bottles for a few steps, and realized that it was awkward and uncomfortable, and I didn’t want to drop them, they were made out of glass. Without thinking, I put them in my jacket pocket, and went over to get the last item on my list. Then I went straight to the cashier at the express lane while trying to remember the broccoli prices and the vials in my pockets.

    When I was at the cashier, as I unloaded my groceries, a couple that was very affectionate with each other over in the café area distracted me. While I was looking at the couple, I was also watching to make sure my son wasn’t getting into things, especially the credit card machine (he loves to push buttons). I glanced over at the cashier screen and saw that the broccoli was rung up at $2.99 instead of .99 cents. I asked the cashier to correct it. When everything was done, I walked out to the parking lot approaching my car. Then the Loss Prevention officer approached my son and me, and asked if I was short of cash. I realized that I had forgotten about the vials in my pockets. I was mortified and pulled them out from my pocket and said that I would go back in and pay for them. He pulled out his badge, and said that he was not arresting me. He just wanted me to come up to his office to do some paper work and promised that I’d be out of there in five minutes. I attempted to show him how the vials could slip through the cart, and that I could not easily carry them in my hands and push the cart. He did not care to see or hear what I was saying; he just wanted us to go to his office without making a scene. Ironically, I had to put the vials back in my pocket to push the cart back to the store and carried my son to his office.

    When I got to the office, the loss prevention officer, bombarded and drilled me with questions, such as, “Are you a single mother,” when I said, “no,” He asked what my husband does for a living. Does my husband know what I was doing? Then he assured me that I didn’t need to tell my husband if I didn’t want to. He asked, “Have I stolen before?” And I said yes, and explained that I was thirteen, which was 20 years ago. He repeatedly asked if I had a problem of stealing. He said that he spotted me as a shoplifter as soon as I walked in the door. I became keenly aware of the situation that I was in. I wanted to call my husband, but I knew he was on a bike ride and it would take him more then 45 minutes to get to me. I just wanted to get my son out of there as soon as possible. Amidst the accusations and judgments that were being thrown at me, I repeatedly said that I had no intent to steal and it was just an innocent mistake. He just shook his head and said he didn’t believe me. I felt like I was in a twilight zone. All that was important to me was to keep my son safe, happy, and not be afraid or affected by any of this.

    When the LPO finally realized that he could not get me to confess for something I did not intend to do, his demeanor turned 180 degrees on me. He asked where I came from. I asked if he was referring to my nationality and he nodded. I said I was Vietnamese. He said that his friends wanted him to go to Vietnam because there are “pretty women” there. Then the officer arrived. The LPO said that he was sorry, if it were up to him he would not charge me. The LPO and officer stepped into another room to talk.

    When the officer came to me, he was polite and cordial, read me my rights, and called in for my criminal records, and confirmed that I had a clean record. Then he sat down and asked me what happened. By this time I was mentally and emotionally exhausted and my son’s patience was running low. We were there for over an hour. I told him a brief version of what happened: I was doing some shopping, ran into a friend, checked out the essential oils, picked 4 vials up, saw that they would fall through the hole of the cart, could not push the cart with the vials in my hand, put them in my pocket, did some more shopping, got distracted at the register, paid for the grocery’s, walked out to the parking lot forgetting that the vials were in my pockets, and then the LPO approached me. The officer asked how much the total of the stolen items was. I said 4 at $9.99 per vial. After hearing my story, he said that he believed me, and advised me to tell the judge what I told him, the judge would be sympathetic and dismiss the case. He took my picture and a picture of the vials. He gave me a ticket and told me the arraignment date.

    I have a Master’s in Social Welfare from Berkeley and am a responsible citizen and mother. I am committed to live my life with a good sense of morality and integrity. I understand the consequences theft has on the merchants, their employees and customers, and the shoplifters. I am well aware of the consequences of what could happen to the offenders’ children once they enter into the system. I would never put my child’s life and sense of security at risk.

    I am starkly aware of the implications and consequences of having a criminal record in my line of work. Not only would I face professional discrimination that might keep me from getting the job that I want to best serve the community (which is in public health), but it would make me very vulnerable to those who might intentionally or unintentionally want to incriminate me. As a social worker I work with people with mental disorders, if I were to have a criminal record of theft and one of my clients accuses me of stealing from them then I would face a possible felony charge. I would never steal anything or do anything illegal knowing what is at stake.

    Am I obligated to pay the fine rendered by Whole Foods if diverted or the charge is dismissed?
    If diverted, where would the record be kept, and who has access to it?
    Is settling with diversion an admission to guilt?
    What are the differences on your record between pretrial diversion and dismissal?
    Is it possible for me to file a Petition for Factual Innocence in a shoplifting case?
    Any advice?

    Thank you

  2. #2
    Join Date
    Jun 2009
    Location
    California
    Posts
    666

    Default Re: Innocent Charged in Shoplifting - California

    Given that your arraignment is Tuesday and this is Sunday night, you best spend tomorrow getting a criminal defense attorney. You state this happened on February 7. You have really hurt yourself by not getting one before now. Your story is just a version of a perceived defense that shoplifters use. You can't prove any of it, and it really isn't very believable, whether or not it is true. They can prove that you left the store with merchandise in your pocket that you hadn't paid for. It's pretty much an open and shut case for them.

  3. #3
    Join Date
    Feb 2010
    Location
    Midwest
    Posts
    35

    Default Re: Innocent Charged in Shoplifting - California

    Even if you really did forget to pay for the items inside your coat, you did "conceal" the items and pass the last point of sale (exiting). It is going to be hard to prove that you did this by mistake since the shoplifting "elements" are there. You will still have to pay the Civil charge, even if your shoplifting charge is dismissed. They are two completely different things. I hope you have either contacted the lawyers who sent the Civil Demand or that you have paid it already (otherwise it will continue to go up and you could be sued if you do not pay it).

  4. #4
    Join Date
    Feb 2010
    Posts
    3

    Default Re: Innocent Charged in Shoplifting - California

    I appreciate your views and we have contacted lawyers previous to this post. However we have been told that pre-trial diversion is my best scenario at this point and wanted to use this forum as a sounding board for different opinions. Each lawyer that we spoke with had different opinions about the Petition for Factual Innocence specifically and most had very little experience with it because it is usually an additional $5000 on top of the +- $5000 it will cost in total for this innocent mistake. If the PFI is not feasible with a shoplifting case and no one has had any success with it then I would rather not throw money in that direction. Unfortunately one lawyer that we contacted with alot of experience with PFI's in California, Brian Dinday, passed away last November.

    If pre-trial diversion is our best option and it is offered at the arraignment then it will be $4000 for a days work for the lawyer at this point plus civil fees and I would rather send that money to the children in Haiti and now Chile. However if the case needs to be dismissed or goes to trial then it of course is money well spent.

    When I contacted the Whole Foods manager who called the police but I had never met and explained the situation she told us she was "sorry" for the confusion and that I should contact her if/when I get the Civil Demand and she would work to reduce it to a "reasonable" amount. I still have not received any bill.

    I have a reasonable picture of what the results of this will be under the law but I am looking for other interpretations if available.
    Because, as a past state employee, I would like to see which decisions will affect me in specific ways for my future employment in Public Health.

    If diverted who has access to my record?
    What are the differences on your record between pretrial diversion and dismissal?
    Is it possible for me to get a Petition for Factual Innocence in a shoplifting case with enough evidence?

  5. #5
    Join Date
    Feb 2010
    Posts
    3

    Default Re: Innocent Charged in Shoplifting - California

    UPDATE:
    I went to my arraignment and they gave me an offer for diversion. The diversion included 24 hours community service, a anti-theft class, I could never shop at the Whole Foods where the incident occurred again, and miscellaneous fines and fees which amounted to around $400. I was also offered a meeting with the DA expediter if I wanted. I took the offer and scheduled the meeting with the DA for the following week.
    I had a former DA family friend counseling me on what DA's may be looking for to dismiss the case, because at this point this is what I was looking to achieve.

    All of the lawyers whom I met with as possible counsel said there was little to no chance of me getting a case dismissed by a DA without a lawyer. I was determined to prove them wrong. I admit that in most circumstances this is probably the incorrect thing to do, especially if you are factually guilty, because you could make the case easier for the DA to find you guilty.

    After the arraignment my husband suggested since we had not had any luck getting a hold of the regional manager for Whole Foods that we should make a visit to the regional office and make an appointment in person. We ended up getting an impromptu meeting with the VP of the Northern California region for Whole Foods and explained the situation with pictures. We didn't know who he was until he gave us his card as we left. Before finishing the story he knew that the vials would fall through the cart, and having been a manager of a store in the past said that it was not their policy for a manager to call the police without meeting with the person beforehand. He also let us know that the manager in charge at the time had been removed from her duties. He agreed to write a letter to the DA's office dropping the charges on behalf of Whole Foods and apologized for the troubles I had been through.

    The meeting with the DA went smoothly and the case was dismissed with the letter from Whole Foods and a brief explanation and pictures of the vials falling through the holes in the cart.

    Moral of the story: Get a second opinion from as many people as you know who are in the legal business, educate yourself about your situation and keep fighting for your innocence (assuming you are innocent). The store manager stated the day after the initial incident happened that there was nothing she or anyone at Whole Foods could do and that the "ball was already rolling" and it was up to the legal system now. Not true. We tried for a week to get in touch with someone at the regional office of Whole Foods but their automated phone system made it impossible to get a real person. We went there in person and asked to speak with anyone who would listen to us. Thank you Whole Foods for your understanding.

    We saved $3-4,000 doing our own leg work and research, which we can use to help the children in Haiti.

    Donate to Save the Children
    http://www.savethechildren.org/count...ean/haiti.html

  6. #6
    Join Date
    Apr 2006
    Location
    NW of KSTL
    Posts
    2,554

    Default Re: Innocent Charged in Shoplifting - California

    If I had a quarter for every time I heard the "....forgot it in my pocket...." story I'd retired twenty years ago!

    Your "story" turned out okay for ya though.

    I would hope your Haiti claim is true...........

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