Bay Area prosecutors have filed more than 1,200 felony petty theft cases under a tough-on-crime measure California voters overwhelmingly approved last year — but charging rates vary widely across the region as some counties more aggressively employ the new penalties.
Frustrated by viral smash-and-grab robberies, store closures and locked-up merchandise in the wake of the COVID-19 pandemic, nearly 70% of voters backed Proposition 36, which carried majorities in each of the state’s 58 counties.
The new law’s stricter penalties are proving helpful in combating retail theft, according to local prosecutors, law enforcement and retailers. But experts say it’s too early to judge whether it’s succeeding in reducing crime.
“We don’t have data yet that can seek to determine whether Prop. 36 has had any effect on retail theft,” said Magnus Lofstrom, a policy director with the Public Policy Institute of California, which closely tracks crime data across the state.
Proposition 36, which took effect in mid-December, empowers prosecutors to bring felony charges against repeat petty theft and drug offenders. It reversed a key facet of a landmark crime reform measure voters passed in 2014 that had reduced simple drug possession and most thefts of less than $950 to misdemeanors, which generally carry little jail time.
Local district attorneys have broad discretion over how to enforce the measure, reflected in varying charging rates in the Bay Area and across the state.
In San Mateo County — which experienced some of the largest spikes in shoplifting in the state during the pandemic — prosecutors filed 365 felony theft cases during the law’s first six months, according to the county district attorney’s office. No district attorney’s office in the nine-county region filed more. At 50 cases per 100,000 residents, the county had the highest charging rate in the region, according to a review of charging data by this news organization.
“The idea here is escalation and consequences,” said Shin-Mee Chang, the county’s chief deputy district attorney. “We now have tools to address repeat offenders.”
The new law allows prosecutors to bring felony cases against defendants with at least two prior theft convictions, and to combine multiple thefts into one charge, which can lead to stiffer sentences. Those changes, along with others in the law aimed explicitly at smash-and-grab robberies, are especially helpful in prosecuting retail crime rings that systematically target stores across the region, Chang said.
The felony charges carry penalties of up to three years in jail or prison, though judges retain discretion in sentencing and can reduce the charges to misdemeanors.
After San Mateo County, Napa County had the next highest charging rate for petty theft felonies with 26 cases per 100,000 residents, followed by Santa Clara County with 19 cases per 100,000. San Francisco, which garnered national attention for a pandemic wave of property crime, had the lowest rate: about seven cases per 100,000 residents.
Law enforcement officials credit Proposition 36 with enabling local police and sheriff’s departments to hold repeat theft offenders in custody while they await the outcome of their cases.
Sutter County Sheriff Brandon Barnes, president of the California State Sheriffs’ Association, one of Proposition 36’s primary backers, said that before the measure, his deputies would often grow frustrated when suspects were quickly let back into the community on misdemeanor charges. He said that’s changed.
“People are starting to feel a little bit better about the work that they’re doing and the impact they’re having,” Barnes said.
Still, measure backers accuse state lawmakers of undermining Proposition 36 by failing to allot enough money for local law enforcement, probation departments, treatment providers and others to implement the measure. This summer, the state Legislature agreed to $100 million to support the law, which Barnes described as “insufficient.”
Criminal justice advocates, meanwhile, have criticized the law as a punitive measure that disproportionately targets the state’s poorest residents and communities of color.
In Alameda County, many of those facing felony charges under Proposition 36 are accused of stealing groceries or other essential items and have no connection to organized retail crime, lead public defender Brendon Woods said.
“A lot of them are stealing out of poverty,” Woods said. “A lot of them are stealing because of need.”
The Alameda County District Attorney’s Office brought 167 felony theft cases under the law during its first six months, about 10 cases for every 100,000 residents. It did not respond to questions about its charging decisions.
Rachel Michelin, president of the California Retailers Association, said she’s heard fewer complaints from merchants since the law took effect, an early sign the law may be deterring crime.
Michelin also pointed to a crime bill package the association supported and the state passed last year. Like Proposition 36, the legislation created stiffer penalties for repeat theft offenders and smash-and-grab robberies. It also funds ongoing efforts led by the California Highway Patrol to combat organized retail theft statewide, including an extended crackdown in Oakland.
Local prosecutors and police now “have a whole menu of options that will be able to deter retail theft in their communities,” she said.
In Menlo Park, Mike’s Camera store manager Matt Todd said he’s heard of fewer brazen thefts targeting local retailers and high-end shopping centers in the area since San Mateo County prosecutors began using Proposition 36. Last year, a burglary crew drove a car through his storefront, making off with camera equipment and causing about $50,000 in damage.
During the Proposition 36 campaign, the store signed onto a petition with other merchants in support of the measure.
“Signing petitions is about all we can do,” Todd said. “We don’t have lobbying money.”
While it might be too early to gauge the measure’s impact on retail theft, new crime data for 2025 should start to become available later this year, crime experts said. Last year, shoplifting continued to rise even as most types of crime fell after a pandemic spike, according to an analysis of the latest available statewide data by the Public Policy Institute.
How Proposition 36 ultimately plays out will hinge upon the appetite of law enforcement, prosecutors and judges to “dust off the playbook” of tough-on-crime policies of the 1990s, which led to severely overcrowded jails and prisons, said Greg Woods, a criminology professor with San Jose State University.
“It depends upon the political will of those individuals to apply the law,” Woods said.