Penal Code § 666 PC – Petty Theft With a Prior

Penal Code § 666 PC is the charge commonly filed when you commit petty theft while having a criminal record that includes certain prior convictions. The crime is often referred to as “petty theft with a prior.”

The charge can be

• a misdemeanor or
• a felony and
• a conviction carries a penalty of up to 3 years in jail.

Per Penal Code 488 PC, petty theft is when a person steals someone’s property or services worth $950 or less.

According to PC 666, a defendant will receive a sentencing enhancement for a PC 488 conviction when:

1. he or she has a prior conviction for a theft crime, and
2. he or she served a term in a penal institution for that conviction, and
3. he or she has a prior conviction for either a violent offense or a certain sex crime.

Example

A defendant gets a harsher sentence for a petty theft conviction because of a:

• prior conviction (and jail sentence) for burglary, unlawful under Penal Code 459 PC, and
• prior conviction of murder, unlawful under Penal Code 187 PC.

Defenses

A defendant may contest a charge under this statute by raising a legal defense. Common defenses include showing that the accused:

• is innocent of petty theft,
• has no qualifying priors, and/or
• is being falsely accused.

Penalties

A petty theft charge, on its own, is:

• a misdemeanor, and
• punishable by custody in county jail for up to six months.

Petty theft with a prior conviction is a wobbler offense. This means that a prosecutor can charge it as either a:

• misdemeanor, or
• felony.

A misdemeanor conviction is punishable by imprisonment in the county jail for up to one year.

A felony conviction is punishable by custody in jail for up to three years.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Definition
• 2. Defenses
• 3. Penalties
• 4. Immigration
• 5. Expungement
• 6. Gun rights
• 7. Related offenses
• Additional reading

1. Definition

Per Penal Code 666 PC, a defendant will receive a sentencing enhancement for a petty theft conviction when:

1. he has a prior conviction for a theft crime, and
2. he served a term in a penal institution for that conviction, and
3. he has a prior conviction for either a violent offense or a certain sex crime.¹

Note that the above three elements are sentencing factors. A prosecutor does not:

• have to prove them in order to
• convict a defendant of the underlying petty theft charge.²

Questions often arise under this statute on the meaning of:

1. prior conviction of a theft crime, and
2. prior conviction of a violent offense or certain sex crimes.

Prior conviction of a theft crime

In order to face penalties under this statute, a defendant must first have had:

• at least one prior conviction for a California theft crime, and
• served a jail or prison term for that crime.

The theft crimes that lead to increased penalties are:

• petty theft (Penal Code 488 PC),
• grand theft (Penal Code 487 PC),
• burglary (Penal Code 459 PC),
• carjacking (Penal Code 215 PC),
• robbery (Penal Code 211 PC), and
• felony receiving stolen property (Penal Code 496 PC).³

Prior convictions of a violent offense or certain sex crimes

Simply having a prior conviction for a theft crime is not enough for PC 666 to come into play. In order for a defendant to be sentenced under this law, one of the following also needs to be true:

1. he has a prior sex crime conviction that requires him to register under California’s sex offender registration law, or
2. he has a prior conviction for a certain serious and/or violent felony.⁴

According to this statute, serious and/or violent felonies include:

• “sexually violent offenses,” which means sex crimes committed by use of force, violence, or threat of bodily injury,
• sex crimes against a child under the age of 14,
• murder or attempted murder (Penal Code 187 PC),
• gross vehicular manslaughter while intoxicated (Penal Code 191.5),
• solicitation to commit murder,
• assault with a machine gun on a peace officer or firefighter (Penal Code 245a2 PC),
• possession of a weapon of mass destruction, and
• any serious and/or violent felony that is punishable by life in prison or death.⁵

2. Defenses

There are several common defenses that can be raised in a 666 PC case:

Three common defenses are:

1. innocent of petty theft,
2. no qualifying priors, and/or
3. falsely accused.

Innocent of petty theft

This statute only applies to cases in which:

• a defendant (with certain prior offenses)
• is convicted of petty theft.

Enhanced penalties will not be applied if the accused is not guilty of the underlying theft charge. It is a defense, then, for the defendant to show that he is innocent of petty theft.

No qualifying priors

Again, these laws only apply to cases in which:

• a defendant is guilty of petty theft, and
• has certain prior convictions.

Therefore, it is a defense for an accused to show that he has no prior convictions that bring this law into play. Or that the prosecutor does not have sufficient evidence to prove up the prior convictions.

Falsely accused

Countless people are falsely accused and wrongly arrested for California theft crimes. Therefore, it is a common legal defense for an accused to say that he was unjustly blamed.

3. Felony

A petty theft charge, on its own, is:

• a misdemeanor, and
• punishable by custody in county jail for up to six months.⁶

Petty theft with a prior conviction becomes a wobbler offense. This means that a prosecutor can charge it as either a:

• misdemeanor, or
• felony.

A misdemeanor conviction is punishable by imprisonment in county jail for up to one year.⁷

A felony conviction is punishable by custody in jail for up to three years.⁸

4. Immigration

A conviction under Penal Code 666, on its own, will not have any immigration consequences.

Some California crimes can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

But a petty theft charge will not have this result.

Note, though, that a defendant sentenced under this statute:

• may have already experienced immigration hardships,
• because of his prior convictions.

5. Expungement

A person can get an expungement for a petty theft charge, provided that he completes his:

• probation, or
• jail sentence (whichever is applicable).

This is favorable since an expungement releases a defendant from many of the hardships caused by a conviction.⁹

Note, though, that the defendant may not be able to get certain prior convictions expunged.

6. Gun rights

A conviction under this statute may cause a defendant to lose his gun rights.

Convicted felons, per California law, cannot legally own or possess a gun.

Remember that:

• petty theft becomes a wobbler under this statute, and
• a prosecutor can charge it as a misdemeanor or a felony.

An accused then will lose his gun rights if he is convicted of felony petty theft.

Note, though, that the defendant may have already lost his rights because of a prior conviction.

7. Related offenses

There are three crimes related to petty theft with a prior. These are:

1. petty theft – PC 488,
2. grand theft – PC 487, and
3. receiving stolen property – PC 496.

Petty theft – PC 488

Penal Code 488 PC is the California statute that makes it a crime for a person to steal someone’s property or services worth $950 or less.

Note that it is not a defense for a defendant accused of petty theft to say that he intended to restore the property that was wrongfully taken.

Grand theft – PC 487

Per Penal Code 487 PC, grand theft is:

• the unlawful taking of someone else’s property,
• when the property is valued at $950.00 or more.

A conviction of this crime is one prior that may trigger the enhanced sentencing under PC 666.

Receiving stolen property – PC 496

Penal Code 496 PC is the California statute that defines the crime of “receiving stolen property.” A person commits this offense when he buys, receives, conceals, or sells any property that he knows to be stolen.

Note that a conviction of felony receiving stolen property is a prior that may prompt sentencing under Penal Code 666.

Additional resources

For more information, refer to the following:

• What to Know About Being Addicted to Stealing – Article by WebMD.
• Cleptomaniacs And Shoplifters Anonymous, LLC (CASA) – Self-help group to help overcome compulsive stealing.
• National Association for Shoplifting Prevention (NASP) – Provides programs and services to help stem shoplifting.
• Retail Theft and Robbery Rates Have Risen across California – Article by the Public Policy Institute of California.
• Tax evasion and mechanisms of social control: A comparison with grand and petty theft – Scholarly article in Journal of Economic Psychology.

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