Criminal Defense Q&A: Can a Shoplifter Mace the Storekeeper in Self-Defense?
Question:
Is it still self defense if you’ve already committed a crime? I stole from a shop, then maced the manager for following me out to the parking lot.
I was found off property and wasn’t identified by the victim but by the officer who watched the tape. The stolen property was found near my location but not on me. I got charged with a robbery and assault. Is that right? Am I guilty?
Answer:
A perpetrator of a robbery does not have a right to self-defense. In general, self-defense is available only to those who are faced with imminent danger. CALCRIM 3470.
Shopkeepers, on the other hand, have the right to detain customers whom they believe are stealing. The purpose of this temporary detention is to determine whether the customer did, in fact, steal. This is known as the shopkeeper’s privilege. Penal Code 490.5(f).
If a customer shoplifts and uses force during the commission of the theft, he can be charged with robbery, a felony that is punishable by up to 6 years in prison. Penal Code 211, 213(a)(1)(B).
That the perpetrator then maces the shopkeeper after he leaves the store does not affect the charge. The after-the-fact macing is viewed as part of the robbery, not as a separate crime. People v. Estes (1983) 147 Cal.App.3d 23, 26.
A shopkeeper is well within his rights to invoke self-defense when he reasonably believes that an assault from a customer is imminent. This is true regardless of whether the anticipated contact is slight or severe. CALCRIM 3470.
Going forward, it would be prudent to discuss this case only with your retained attorney or deputy public defender.
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
