Yes, when it is done with intent to defraud. California has a specific statute for this, Penal Code section 537, separate from the general theft laws. It covers getting food, fuel, services, or lodging at a hotel, restaurant, and several other listed businesses without paying, with intent to defraud the owner or manager.
What the statute actually covers
Penal Code 537(a) applies to someone who obtains food, fuel, services, or accommodations at a hotel, inn, restaurant, boardinghouse, lodginghouse, apartment house, bungalow court, motel, marina, marine facility, autocamp, ski area, or public or private campground, without paying, “with intent to defraud the proprietor or manager thereof.” It also covers two related acts at the same kinds of businesses (ski areas are left off the list for these two): obtaining credit “by the use of any false pretense,” and, after obtaining credit, food, fuel, services, or accommodations, absconding, or removing any part of one’s baggage “surreptitiously, or by force, menace, or threats,” with the intent not to pay.
That is a narrower, more specific law than California’s general theft statute. Penal Code section 484 defines theft generally, including knowingly defrauding someone by a false representation, and petty theft is simply “theft in other cases” under that same general scheme. Section 537 sits in a different chapter of the Penal Code, the one titled “False Personation and Cheats” rather than the larceny chapter, and it has its own elements and penalties.
The penalty depends on the dollar amount
Section 537 sets its own dollar line, at the same $950 figure used elsewhere in California theft law:
- If the credit, food, fuel, services, or accommodations were worth $950 or less, the statute sets the penalty as “a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for a term not exceeding six months, or both.”
- If the value was more than $950, the penalty becomes imprisonment in a county jail for up to a year, or in the state prison.
Because the upper tier includes state prison, a value over $950 exposes the person to a felony charge. Penal Code section 17(b) then lists the circumstances in which an offense that can be punished either way is “a misdemeanor for all purposes,” among them a complaint the prosecutor files as a misdemeanor and a judge’s misdemeanor declaration at the time probation is granted.
That $950 figure matches the petty theft line in Penal Code section 490.2, which Proposition 47 added, but Section 537 has its own separate penalty structure rather than borrowing that statute’s.
The statute’s own evidence rule
Under Section 537(c), evidence that a person left the premises without paying or offering to pay is “prima facie evidence” of two things: that the person obtained the food, fuel, services, or accommodations with intent to defraud the proprietor or manager, and that, if the person absconded or removed baggage after obtaining the credit, food, fuel, services, or accommodations, the person did so with intent not to pay.
Evidence Code section 602 says a statute making one fact prima facie evidence of another “establishes a rebuttable presumption.” Criminal cases add a limit. Penal Code section 1096 places on the prosecution “the burden of proving him or her guilty beyond a reasonable doubt,” and in People v. Roder (1983) 33 Cal.3d 491 the California Supreme Court held that a presumption in the receiving-stolen-property statute had to be read as “authorizing only a permissive inference, not a mandatory presumption,” which a jury may draw but does not have to.
Leaving without paying is evidence the prosecution can use, not an automatic conviction. A genuine billing dispute, an intention to come back and pay, or some other explanation inconsistent with intent to defraud is the kind of fact a defense would raise against it.
Does a prior theft conviction make this worse?
Not through Penal Code section 666.1, at least for a Section 537 conviction. Section 666.1, added by Proposition 36, raises the punishment for a person “who is convicted of petty theft or shoplifting” and has two or more prior convictions from its list: petty theft, grand theft (by section number or as described in the larceny chapter), theft from an elder or dependent adult, vehicle theft or unauthorized use, burglary, carjacking, robbery, receiving stolen property, shoplifting, and identity or mail theft. A Section 537 conviction is neither petty theft nor shoplifting, and Section 537 is not named on the list and sits outside the larceny chapter, so it is not one of the listed priors either. The analysis changes if the same incident is charged under a theft statute instead, so confirm exactly which sections are charged.
Separately, Proposition 36’s Penal Code section 490.3 lets prosecutors combine the value of property or merchandise stolen in one or more acts of theft or shoplifting into a single count. It names a few sections as examples and says it is not limited to those, but nothing in the statute itself confirms whether that combining rule reaches a Section 537 case. Ask your attorney how your specific charges are being counted.
What to do if you’re accused
- Get the actual charge and the dollar amount alleged, since Section 537 has two different penalty tiers depending on value.
- Gather anything that shows you intended to pay: a receipt, a record of a payment dispute with the business, a bank or card statement, or a witness to what happened when you left.
- Do not ignore a citation or summons on the theory that this is only a private, civil matter between you and the business; Section 537 is a criminal statute.
- Talk to a lawyer before discussing the incident with the business, its staff, or police.
For help with a California theft accusation, including petty theft and shoplifting charges, call the Law Offices of David S. Chesley at (800) 755-5174.