California's "Petty Theft with a Prior" Law
(Penal Code 666 PC)

California Penal Code 666 PC "Petty Theft with a Prior" is one of the harsher, more unfair sentencing schemes in California criminal law.

Since petty theft is one of the least serious theft crimes, it is usually a misdemeanor carrying relatively light penalties: a fine of up to one thousand dollars ($1,000), and/or up to six (6) months in county jail.1

But, if you have certain prior convictions on your record, Penal Code 666 PC changes all that. This law, known as California's "petty theft with a prior" statute, turns a petty theft charge into a wobbler...which means it may be brought either as a misdemeanor charge OR as a felony charge.2

If it is charged as a felony, Penal Code 666 PC petty theft with a prior can lead to up to three (3) years in California state prison!3

This is a pretty harsh penalty for a criminal charge that, much of the time, arises out of shoplifting cases...in which the shoplifter didn't even take anything particularly valuable!

Most "petty theft with a prior" cases arise out of minor shoplifting cases.

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In order to help you better understand Penal Code 666 PC, California's "petty theft with a prior conviction" law, our California criminal defense attorneys will address the following:

1. The Legal Definition of Petty Theft with a Prior in California

1.1. Previous conviction for a theft crime

1.2. Proving that you have a prior conviction for a theft offense

2. Penalties for Penal Code 666 PC Petty Theft with a Prior
3. Legal Defenses to Charges of Petty Theft with a Prior

If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

1. The Legal Definition of Petty Theft with a Prior in California

In order to be sentenced to penalties for petty theft with a prior, you must first be convicted of California petty theft under Penal Code 484 & 488 PC.4

The crime of petty theft in California consists of unlawfully taking someone else's property...when that property is

  • valued at nine hundred fifty dollars ($950) or less,
  • not of certain special types (like a car or a firearm), AND
  • not taken directly off of the person it belongs to (as in a mugging, for example).5

Petty theft charges usually arise out of shoplifting (also known as petty theft by larceny) cases. But they can also arise from allegations of petty theft by trick or false pretenses, or petty theft by embezzlement under California embezzlement laws (Penal Code 503 PC).6

Once you have been convicted of petty theft, the jury must then decide whether Penal Code 666 PC, California's "petty theft with a prior" statute, applies. The legal definition of petty theft with a prior revolves around two key facts that the prosecutor must prove:

  1. You have qualifying prior convictions for a theft crime (we'll explain below what this includes), and
  2. You served time in a prison or jail for those convictions.7

The second requirement is pretty straightforward...either you served a jail sentence, or you didn't. The first one is more complicated and requires some discussion.

1.1. Previous conviction for a theft crime

In order to face penalties for Penal Code 666 PC petty theft with a prior, you need to have at least one prior conviction for a California theft crime <. Merely having been charged with a crime will not suffice.

The prior convictions that lead to increased penalties are:

  • Petty theft (Penal Code 488 PC),
  • Grand theft, including grand theft firearm (Penal Code 487 PC),
  • Grand theft auto (Vehicle Code 10851 VC),
  • Burglary (Penal Code 459 PC),
  • Carjacking (Penal Code 215 PC),
  • Robbery (Penal Code 211 PC), and
  • Felony receiving stolen property (Penal Code 496 PC).8
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Burglary is one conviction that can lead to petty theft with a prior penalties.

But simply having one of these theft crime convictions on your record will not subject you to Penal Code 666 PC penalties. To be sentenced under California's "petty theft with a prior" law, one of the following things also needs to be true:

  1. You have three (3) or more convictions for crimes from the list above, OR
  2. You have one (1) conviction for a crime from the list above, AND either:

    a. You have a prior sex crime conviction that subjects you to the requirement to register as a sex offender under Penal Code 290 PC, OR

    b. You have a previous conviction for a so-called "serious" felony under Penal Code 1192.7(c) PC or violent felony under Penal Code 667.5(c).9

"Serious" felonies under Penal Code 1192.7(c) PC...and violent felonies under Penal Code 667.5(c) PC...include a long list of crimes. Some of these are:

You'll notice that some of these "serious" felonies-first-degree burglary, robbery, grand theft firearm, and carjacking-are also theft crimes that are qualifying priors for Penal Code 666 PC penalties in the first place. This means that you need only one prior conviction for one of these offenses to be guilty of petty theft with a prior conviction.

Example: When he is 19, Jose is convicted of first-degree (residential) burglary under Penal Code 459 PC for participating in the burglary of a home. He serves time in jail and begins a new life when he is released. But twenty years later, when he is 39, Jose is convicted of petty theft for shoplifting some clothing.

First-degree burglary counts as a "serious felony" for purposes of California's petty theft with a prior law. Thus, even though Jose has only one burglary conviction on his record, his new petty theft case can be charged as "petty theft with a prior" under Penal Code 666.

Example: Bethany has a compulsive shoplifting problem. She is caught stealing a necklace from a department store and is convicted of petty theft, for which she serves several months in county jail. A month after she is released, Bethany is arrested again...this time for trying to shoplift several bottles of expensive perfume.

Bethany only has one prior petty theft conviction on her record. Petty theft is not a serious or violent felony, so...when she is charged with petty theft a second time...it will NOT be petty theft with a prior.

1.2. Proving that you have a prior conviction for a theft offense

In most cases, the prosecutor will be required to prove that you have the qualifying prior convictions for theft offenses.13 The only exception is if you decide to admit (or "stipulate") that you do have such convictions.14

Usually the prosecution will prove that you have qualifying prior convictions at the same trial at which you are tried for petty theft. However, in some cases you or the prosecution might request...and receive...what is known as a "bifurcated trial."15

This means that you will have two trials before two different juries. In the first, the prosecutor will seek to prove that you committed petty theft. In the second, the prosecutor will try to prove that you have prior convictions that qualify you for "petty theft with a prior" penalties under Penal Code 666 PC.

Why a defendant might want a bifurcated trial

It is common for defendants to try to get the court to grant them a bifurcated trial.

The basic idea is that hearing about the prior convictions will bias the jury against the defendant. If the same jury is hearing about both their prior convictions and the current charge, the jury may be more likely to convict on the current charge.

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Why a prosecutor might want a bifurcated trial

But sometimes it's the prosecutor who requests a bifurcated trial...for very interesting reasons. When petty theft and "petty theft with a prior" charges are handled in a single trial, jurors might be shocked by how harsh the penalties would be if the defendant is convicted...given that petty theft is, in most cases, not a very serious crime.

These juries might then sometimes do something called "jury nullification." This means that they refuse to convict the defendant of petty theft on the current charge even if the prosecution has enough evidence...because they don't want to see him/her suffer the "petty theft with a prior" penalties!16

2. Penalties for Penal Code 666 PC Petty Theft with a Prior

When a defendant in a petty theft case is convicted of petty theft with a prior conviction, the crime becomes a wobbler in California law.

This means that the prosecutor may choose to try it as a misdemeanor OR as a felony, depending on

  1. the facts of the case, and
  2. the defendant's criminal history.17

If petty theft with a prior is charged as a misdemeanor, the maximum jail sentence will be up to one (1) year in county jail.18

But if it is charged as a felony, then the penalties for petty theft with a prior include a jail or California state prison term of sixteen (16) months, two (2) years, or three (3) years.

These harsh penalties exist despite the fact that social science studies have shown that felony penalties for petty theft crimes do nothing to reduce incidences of shoplifting...which is where most petty theft charges come from.

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3. Legal Defenses to Charges of Petty Theft with
a Prior

The good news is that there are legal defenses available to help you avoid "petty theft with a prior" penalties.

An experienced criminal defense attorney in California can help you get your charges reduced or dismissed by either:

  • challenging the current petty theft charge, or
  • challenging the prior conviction.

Legal defenses against the current petty theft charge

There are a number of promising legal defenses you can use to fight the charges of petty theft that are currently being brought against you.

Lack of intent to steal

If you didn't have the intent to steal, you can't be convicted of petty theft or petty theft with a prior- period!19

This means that if your California petty theft attorney can convince the prosecutor, judge, and/or jury that you were simply being absent-minded...that you forgot to pay or something similar...then you are not guilty of petty theft.

This defense applies most often in petty theft by larceny-shoplifting-cases.

You believed the "stolen" item actually belonged
to you

This defense applies either

  • when the "stolen" property actually belonged to you, or
  • when you had a good faith belief...even if you were mistaken...that it belonged to you.20

This is because intent to steal is an element of the crime of theft. If you believed an item belonged to you, then you couldn't have intended to steal it.

You were falsely accused

Countless people are falsely accused-framed-and wrongly arrested for California shoplifting, theft by false pretenses, and other petty theft offenses.  Therefore, this is a common and helpful potential legal defense.

According to Oakland criminal defense attorney Neil Shouse21 :

"It's amazing how many people are arrested on trumped-up shoplifting charges. Usually, what happens is that a real shoplifter quietly places an item in the purse or pocket of another shopper at the store. When the innocent shopper tries to leave, he or she is apprehended by security. The real shoplifter then uses the distraction to leave the store unnoticed."

Legal defenses against the prior convictions

It is generally more difficult to challenge the fact of a prior conviction.

However, in some cases, an over-zealous prosecutor may wrongly assert that you have suffered three prior theft offense convictions, or that you have one prior theft conviction and a serious or violent felony on your record.

If this occurs, a good California theft crimes defense attorney can help you sort through the documents related to your case to get to the truth...and convince the court of it.

Also, your criminal defense attorney may recommend that you file a motion to "bifurcate" your trial into two separate trials, as we discussed above. In that case, one jury would decide whether you are guilty of the current petty theft charge...and another would decide whether you have qualifying prior convictions.

This might help prevent the jury from developing an image of you as a "career criminal"...and so convicting you unfairly on the current petty theft charge.

Call Us for Help...
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If you or loved one is charged with Penal Code 666 PC petty theft with a prior and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about the crime of petty theft in Nevada, you may visit our page on the crime of petty (petit) larceny in Nevada.

You may also find helpful information in our related articles on California Petty Theft & Shoplifting Laws Penal Code 484 & 488 PC; California Embezzlement Laws Penal Code 503 PC; Penal Code 459 PC California Burglary; Penal Code 211 PC Robbery; California Penal Code 487(d)(2) PC - Grand Theft Firearm; California "Carjacking" Laws Penal Code 215 PC; Legal Definition of a Wobbler in California Law; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; and Common Legal Defenses to California Crimes.

Legal References:

1 Penal Code 490 PC - Petty theft; punishment. ("Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.")

2 Penal Code 666 PC - Petty theft with a prior. ("(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, 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, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170. (b) Notwithstanding Section 490, any person described in paragraph (1) who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. (1) This subdivision shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.")

3 See same, Petty theft with a prior.

See also Penal Code 18 PC - Felony penalties. ("a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.")

See also Penal Code 1170(h) PC - Indeterminate sentencing. ("(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")

4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 1850 - Petty Theft With Prior Conviction. ("If you find the defendant guilty of petty theft, you must then decide whether the People have proved the additional allegation that the defendant has been convicted of a theft offense before and served a term in a penal institution as a result of that conviction.")

5 Penal Code 488 PC - Petty theft defined. ("Theft in other cases is petty theft.")

See also Penal Code 487 PC - Grand theft defined [contrast with petty theft / petty theft with a prior]. ("Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b). (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: (1)(A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250). (B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value. (2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250). (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period. (c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig. (2) A firearm.")

6 Penal Code 484 PC - Theft [including petty theft with a prior] defined. ("Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.")

7 CALCRIM 1850 - Petty Theft With a Prior Conviction. ("To prove this allegation, the People must prove that: 1. The defendant was previously convicted of a theft offense; AND 2. The defendant served a term in a penal institution for that conviction.")

8 Penal Code 666 PC - .Petty theft with a prior, endnote 2, above.

9 See same, Petty theft with a prior.

10 California Penal Code 667.5 PC -- Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.")

11 California Penal Code 1192.7(c) - Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section. ("(c) As used in this section, "serious felony" means any of the following: . . . (8) 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; . . .")

12 See same. (" . . . 18) any burglary of the first degree; (19) robbery or bank robbery; . . ., (26) grand theft involving a firearm; (27) carjacking; . . . .")

13 CALCRIM 1850 - Petty Theft With a Prior Conviction.

14 See same, Petty Theft With a Prior Conviction, Bench Notes. ("Give this instruction only if the defendant does not stipulate and the court does not grant a bifurcated trial.")

15 See same, Petty Theft With Prior Convictions, Bench Notes.

16 See People v. Cline, (1998) 60 Cal.App.4th 1327, 1330-31 (discussing jury nullification in California "three strikes" cases, on bases that would also apply to a petty theft with a prior case).

17 Penal Code 666 PC - Petty theft with a prior, endnote 2, above.

18 See same, Petty theft with a prior.

19 CALCRIM 1800 - [Petty] Theft By Larceny [must be proven to get a petty theft with a prior conviction]. ("To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant took possession of property owned by someone else; 2 The defendant took the property without the owner's [or owner's agent's] consent; 3 When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's [or owner's agent's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property); AND 4 The defendant moved the property, even a small distance, and kept it for any period of time, however brief.")

20 People v. Tufunga, (1999) 21 Cal.4th 935. ("The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of [petty] theft [with a prior] or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense.")

21 Oakland criminal defense attorney Neil Shouse is the founder and Managing Attorney of Shouse Law Group. He served five years in the Los Angeles County District Attorney's office, prosecuting more than 60 criminal trials with an astonishing 96% success rate in felony jury trials to verdict. Now, Mr. Shouse defends clients accused of crimes ranging from DUI and drug charges to all varieties of theft crimes to complex, high-profile murders.

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