Petty Theft With A Prior Conviction In California

What is Petty Theft With a Prior Conviction?

Important Legal Update: Proposition 47 has changed petty theft with a prior under penal code 666 sentencing. Prior to proposition 47, three (3) prior convictions for various theft crimes could result in a felony sentence of 16 months to 3 years for a conviction on a new charge.

However, prop 47 has changed the law so that a majority of cases with three prior theft conviction will remain misdemeanors. Exceptions include

• Prior convictions for penal code 368(d) or (e) elder abuse and
• If the person is required to register as a sex offender.

Although “petty theft”  is not a serious offense and is usually charged as a misdemeanor, California Penal Code Section 666 — California’s law on “petty theft with a prior” provides for much heavier penalties if you have certain prior convictions on your record for which you can serve time in a jail or state prison.

If you are convicted of a “petty theft with a prior,” and it is charged as a felony, you may be sentenced for up to 3 years in state prison.  An experienced criminal defense attorney can help you assert any applicable defenses that may lower your charges.

Examples:

Jessica has three petty theft convictions on her record for shoplifting for which she has served time.  She has recently got caught shoplifting again.  Jessica can be charged with a “petty t

heft with a prior,” because the three prior petty theft convictions for which Jessica served time, trigger the “petty theft with a prior” statute under Penal Code Section 666 PC.

How Does the Prosecutor Prove The Charge?

To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements¹:

• The defendant committed petty theft under California’s Penal Code Sections 484 VC and 488, which entails the intentional taking away of property belonging to another when:
• The value of the property is $950 or less;
• The property is not taken directly from the owner, such as from the person’s clothing, body, or container held or carried by, the person (such as in a case of mugging or robbery);
• The property taken is not any of the following type of property (the taking of which constitutes grand theft): Automobile, firearm, horse, fruit/nuts worth more than $250, fish/shellfish/aquacultural products worth more than $250 when taken from a commercial fishery/research operation.

Penal Code Section 666 Applies Meaning

• You have certain qualifying prior convictions for a theft crime (these are listed below), AND
• You served time in a prison or jail for those convictions

What Type of Prior Convictions for a Theft Crime May Lead to a Petty Theft With a Prior Conviction?

The following is a list of qualifying theft crimes that can lead to a petty theft with a prior conviction:

• Petty theft – Penal Code 488 PC
• Grand theft – Penal Code Section 487 PC
• Auto theft (Vehicle Code Section 10851)
• Burglary – Penal Code 459 PC
• Carjacking -Penal Code 215 PC 
• Robbery – Penal Code 211 PC
• Penal Code 496 PC – Receiving Stolen Property

It is important to note that merely being charged with the above crimes cannot lead to a conviction for petty theft with a prior.  A defendant has to be convicted and has to serve prison or jail time as a result of the conviction. ²

Requirements For Prosecution

In addition to being convicted for a crime listed above, to be charged with “petty theft with a prior,” one of the following also has to apply to you:

• You have 3 or more convictions for crime(s) from the list above, OR
• You have 1 conviction for a crime from the list above, AND either:
• You have a prior sex crime conviction under Penal Code Section 290 that classifies you as a sex offender, OR
• You have a previous conviction for a serious felony pursuant to Penal Code Section 1192.7(c) or for a violent felony pursuant to Penal Code Section 667.5(c).   Pursuant to Penal Code Section 1192.7(c), a serious felony includes the following crimes:
• Murder, voluntary manslaughter, mayhem, or rape
• Sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person
• Oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person
• Lewd or lascivious act on a child under 14 years of age
• Any felony punishable by death or imprisonment in the state prison for life
• Any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm;
• Attempted murder
• Assault with intent to commit rape or robbery, Assault with a deadly weapon or instrument on a peace officer, Assault by a life prisoner on a non-inmate, Assault with a deadly weapon by an inmate
• Arson, or exploding a destructive device or any explosive with intent to injure, exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem. Exploding a destructive device or any explosive with intent to murder.
• Any burglary of the first degree, Robbery or bank robbery
• kidnapping, Holding of a hostage by a person confined in a state prison

Examples:

If you committed three robberies in the past and are currently facing a conviction for petty theft, you can be charged with a “petty theft with a prior.”

If you have one petty theft conviction on your record for shoplifting and one rape conviction, you can be charged with a “petty theft with a prior,” because your criminal record contains one conviction from the list of qualifying crimes under Penal Code Section 666 and one conviction for rape, which is a serious felony under Penal Code Section 1192.7(c).

How Can You Fight Petty Theft With a Prior?

To help you fight your charges, a skilled criminal defense attorney can try to either (1) challenge the current “petty theft” charge, or (2) to contest the prior conviction(s) on your record.

Defenses Against Your Current Petty Theft Charge

The following are defenses that your attorney can use to fight the current petty theft charges against you:

No Intent To Steal

Intent is one of the elements that a prosecutor has to prove to convict you of a theft crime.  If you did not have intent to steal in the first place, you are not guilty of petty theft.

Consent From Owner

If the owner of the property that you allegedly stole gave you permission to take the property, you are not guilty of petty theft.

Example:

Peter’s neighbor gave him permission to use his lawnmower over the weekend. 

However, after Peter went over to the neighbor’s front lawn and took the lawnmower to mow his lawn, the neighbor accused Peter of stealing the lawn mower from him. 

If charged with petty theft, Peter can use the defense of consent to show that he had the owner’s permission to use the lawn mower and that his intent was not to steal it, but only to borrow it.

Belief That The Property Belonged To You

If the property actually belonged to you or if you honestly but mistakenly thought that the property you took belonged to you, you are not guilty of petty theft.  This additionally shows that your intent was not to take the property; rather to claim or re-claim what you thought was rightfully yours³.

False Accusation

If you were wrongfully accused of taking something, but you did not do so, or did not intent to do so, your criminal defense attorney will ensure to thoroughly investigate the evidence in your favor and to try to show that you were framed, set up, or just plainly wrongfully blamed for something you did not do.

Defenses Against Your Prior Convictions

The following are defenses that your attorney can use to fight the prior convictions against you:

Verifying Your Criminal Record

Sometimes a defendant gets charged with a petty theft with a prior even if the “petty theft with a prior” law does not apply to him/her. 

This can happen if a prosecutor falsely asserts that the defendant has three prior qualifying convictions, but in reality, the defendant has less than three. 

In such an instance, your attorney can parse through your criminal record and set the record straight that you do not qualify for a “petty theft with a prior.”

Bifurcating Your Trial

Your attorney may also recommend that your trial be bifurcated, or split into two different trials, to let one jury decide whether you are guilty of one conviction, and another jury decide on your other conviction. 

Having two separate trials where each jury panel decides only on one conviction may prove to be beneficial to a defendant, in that it can prevent the jury from forming an opinion about the defendant being a repeat offender who does not deserve a break.

The Punishment For Petty Theft With A Prior Conviction

“Petty theft with a prior” can be charged either as a misdemeanor or felony offense.  In other words, it is a “wobbler” offense.  Whether it is charged as one or the other depends on the facts of the case and the defendant’s criminal history.

Penalty	Misdemeanor	Felony
County Jail or prison	Up to 1 year county jail	16 months, 2 or 3 years state prison

Related Offenses and Enhancements

Grand Theft; Grand Theft Auto; Grand Theft Firearm:

Under Penal Code Sections 484 and 487, a defendant may be charged for grand theft instead of petty theft if the value of the stolen property exceeds $950, or the type of property that was stolen is a car or a firearm.

If convicted for grand theft, the defendant may face conviction for either a felony or a misdemeanor.  If charged as a misdemeanor, the defendant may be sentenced to up to 1 year in county jail.  If charged as felony, the defendant may face up to 16 months, 2 years, or 3 years of imprisonment in state prison.

If convicted of grand theft auto, the defendant will likely face a felony charge, as this offense is almost always charged as a felony.

If convicted of grand theft firearm, the defendant will face a felony charge.

Theft Enhancement Pursuant to Penal Code Section 12022.6(a):

If there are multiple charges of theft, whether grand or petty theft, and the aggregate loss exceeds any of the statutory minimums in California Penal Code Section 12022.6(a), and the thefts arise from a common scheme or plan, an additional prison term may be imposed.

If the aggregate loss exceeds statutory amounts ranging from $50,000 to $2.5 million, an additional term of one to four years may be imposed.⁴

Embezzlement:

Embezzlement is a type of theft that can give rise to a petty theft charge.  Under California Penal Code Section 503 pc, theft by embezzlement, occurs when an owner entrusted his/her property to you; the owner did so because he/she trusted you; you fraudulently converted/used that property for your own benefit; and when you converted/used the property, you intended to deprive the owner of the property or its use.

1. Elements; California’s Penal Code Section 666 – “(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefore in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170.” [↩]
2. California Penal Code Section 666: “(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170. [↩]
3. If a person actually believes that he or she has a right to the property even if that belief is mistaken or unreasonable, such belief is a defense to theft. (People v. Romo (1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440]; see also People v. Devine (1892) 95 Cal. 227, 229 [30 P. 378] [“[i]t is clear that a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another’s goods”]; In re Bayles (1920) 47 Cal.App. 517, 519–521 [190 P. 1034] [larceny conviction reversed where landlady actually believed she was entitled to take tenant’s property for cleaning fees incurred even if her belief was unreasonable]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 4–6, 10–11 [160 Cal.Rptr. 692]; [↩]
4. Penal Code, Section 12022.6(a)(1)–(4); see People v. Daniel (1983) 145 Cal.App.3d 168, 174–175 [193 Cal.Rptr. 277] [no error in refusing to give unanimity instruction]. [↩]