If a shop prices all items extremely high and applies a "non-criminal discount" at checkout, will shoplifters get prosecuted based on the high price?

Question

I came across this sign online that states that in the store, all items are marked at $951, with "non-criminal discounts" applied only for paying customers. The sign suggests that this is to ensure that shoplifters will be prosecuted for grand theft under California Penal Code 487 PC, according to which the threshold for grand theft is $950.

I can't verify the post itself, but regardless - would this actually work? If a shoplifter were caught, could they be prosecuted based on the marked price of $951, even though noone actually has to pay that price, or would the actual price at checkout be considered in the prosecution?

While the sign itself is specific to California, I'm interested in different legal systems as well.

(I'm also interested if such pricing would be even legal in itself, but I want to limit my post to one question.)

Answer 1

california

No, I don't think so.

California's grand theft statute, Penal Code Section 487 (which you already linked) consistently uses the word "value" rather than "price" (emphasis mine):

487. Grand theft is theft committed in any of the following cases: (a) When the money, labor, real property, or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).

Earlier in that title, Section 484(a) says:

In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test.

(While technically this is not in the same section, the context seems to make it clear that this test of "value" was intended to apply to other sections in Title 13 as well, except in some specific instances where a different test is explicitly stated.)

So regardless of the sticker price of the goods, if the reasonable and fair market value of the goods is less than or equal to $950, grand theft has not been committed. And the sign itself more or less admits that $951 is not the reasonable and fair market value, as no customer is expected to voluntarily pay that amount.

I did notice in Section 490.5, describing required restitution, includes:

In addition to the foregoing damages, the adult or emancipated minor shall be liable to the merchant for the retail value of the merchandise if it is not recovered in merchantable condition [...]

There might be a slightly stronger case to apply the $951 figure here. But I'd expect that to fail as well, given that no retail customer is paying $951.

Answer 2

canada

This sign would likely be ineffective at altering the charge or sentence.

Theft is defined in the Criminal Code at s. 322 and the offence is created at s. 334. The severity of the offence turns on whether the "value" of what is stolen is more than $5,000.

To prove theft over $5,000, the burden is on the Crown to prove the higher value beyond a reasonable doubt.

In the retail shoplifting context, courts have looked to what price the thing would typically sell at. See R. v. Wheeler, 2012 ABPC 127, para. 36 (relying on reasoning from the BC Court of Appeal):

In the context of the criminal law, as it relates to the theft of property, it would seem most appropriate that the value is determined by the monetary worth of the property to the owner. In the context of a retail operation, this value would be the retail price, as the value is the price that a seller is willing to accept and a buyer is willing to pay on the open market in an arms length transaction.

In the scenario you describe, the Crown would have difficulty proving beyond a reasonable doubt that people were actually willing to pay $951 for the items.

Low-level shoplifting is "not considered a very serious offence" (R. v. Hackett, 2013 CanLII 80918 (NL PC), para. 24):

the usual range of sentence for shoplifting type theft offences includes discharges for first time offenders, fines, suspended sentences with probation (with a condition prohibiting the return of the offender to the premises where the theft was committed for a few months), or short and sharp periods of imprisonment where there is a prior related criminal record.

A store owner is not able to dictate a different approach by the use of signage.

Last, charge approval is an individualized exercise. The claim that "all shoplifters" will be prosecuted, whether under a given provision, or at all, would not reflect Crown charging policy.

Answer 3

australia

The business is committing an offence

It is unlawful for a business to engage in deceptive and misleading conduct in trade or commerce.

The sign unequivocally states “The state of California will prosecute …” which is factually wrong and deceptive and misleading — while the state may prosecute, it’s discretionary, so that doesn’t amount to will prosecute.

Also, at least in new-south-wales, all theft is grand larceny; Crimes Act 1900 s116:

Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine.