Petty theft with a prior is a criminal charge for a minor theft against someone who has been convicted of theft in the past. Because of the prior convictions, the penalties that the new charge carries are higher. Different state laws have different sentencing enhancements for this situation.
What is petty theft?
Petty theft is the criminal offense of stealing something whose value is below a threshold amount.
Depending on the state, petty theft may also be called:
- petit larceny,
- petty larceny,
- larceny,
- theft, or
- misdemeanor theft.
Broadly speaking, theft is the criminal offense involving the following elements of the crime:
- taking possession of property that is owned by someone else,
- doing so without the owner’s consent,
- acting with the intention of permanently depriving the owner of the property, and
- moving and keeping the property for a period of time.[1]
The threshold amount varies by state. For example, it is:
- $1,000 in Arizona,[2]
- $950 in California,[3]
- $300 in Colorado,[4]
- $1,200 in Nevada,[5] and
- $500 in New Mexico.[6]
Generally, taking property under the threshold amount is a petty theft offense, while taking property valued higher than the threshold amount is grand theft. However, stealing certain items may amount to grand theft regardless of their value. For example, in California, it is always grand theft to steal:
- a firearm,
- a motor vehicle, or
- anything of any value directly from the victim’s person.[7]
Unless the property was something of this sort, it does not matter what it was. Whether taking it was petty theft or not only depends on its value. It can be petty theft to steal any of the following types of property, so long as it is valued below the threshold amount:
- jewelry,
- electronics,
- a bicycle,
- appliances,
- furniture,
- clothing, or
- other personal property.
Most petty theft laws do not mention how the property was taken. Petty theft can be committed by way of:
- shoplifting,
- embezzlement,
- the use of false pretenses,
- receiving stolen property, or
- fraud.
What are the penalties for a conviction for this theft crime?
Petty theft is generally a misdemeanor. Convictions for these offenses carry less than a year in county jail. They will also carry:
- a criminal fine, and
- misdemeanor probation.
The exact penalties for a petty theft conviction will depend on the state. Many states, like New Mexico and Texas, have different threshold amounts for the offense of petty theft.
Below are a few examples of the penalties for a conviction of petty theft:
| State | Maximum jail time | Maximum fines |
| Arizona[8] | 6 months | $2,500 |
| California[9] | 6 months | $1,000 |
| Nevada[10] | 6 months | $1,000 |
| New Mexico (petty theft up to $250)[11] | 6 months | $500 |
| New Mexico (between $250 and $500)[12] | 1 year | $1,000 |
| Texas (petty theft up to $100)[13] | None | $500 |
| Texas (more than $100 but less than $750)[14] | 180 days | $2,000 |
| Texas (more than $750 but less than $2,500)[15] | 1 year | $4,000 |
If you are convicted for petty theft, you will also likely be made to pay victim restitution. You may also have to perform community service.
Which prior convictions enhance the sentence?
Many states increase the sentence for petty theft if you have a conviction for a theft offense in the past while other states also count other prior convictions.
State laws also disagree on when the prior conviction must have occurred. This is known as a lookback period.
Eligible offenses
Which prior offenses can enhance the sentence of a conviction for petty theft vary widely by state.
In many states, like Texas, eligible offenses are any theft crime. However, the number of prior convictions necessary to trigger the sentencing enhancement can depend on the situation in that state:
- petty theft of less than $100 is enhanced if you have a prior conviction for any theft offense, but
- petty theft of less than $2,500 is enhanced only if you have 2 or more prior convictions for a theft offense.[16]
Some states, like Utah, only enhance the sentence for certain theft offenses. There, the sentence for petty theft is only enhanced if:
- the value of the property is less than $500 but you have a felony conviction on your criminal history for one of the offenses below, or
- the value of the property taken in the petty theft case was between $500 and $1,500, and you have 2 convictions on your criminal record for any of the following offenses within the last 10 years:
- theft,
- robbery or burglary done with the intent to commit a theft,
- fraud, or
- any attempt to commit the above offenses.[17]
Other states enhance the penalties of petty theft if you have a prior conviction for a theft and certain other offenses. Under California law, for example, the sentence increases if you have served time in jail for a theft offense and also have a conviction for a violent felony or have a sex crime conviction that requires sex offender registration.[18]
Lookback periods
Some states have lookback periods, while others do not. In states that have a lookback period, the prior offense must have been committed within the last few years. In states that do not have a lookback period, the conviction can be from anytime in the past, even multiple decades ago.
For example, California does not have a lookback period. Any prior eligible conviction can enhance the sentence of a subsequent conviction for petty theft, even if it was 50 years ago.[19] Utah has a lookback period. A prior theft conviction only enhances the sentence of a new one for petty theft if:
- it was committed in the last 5 years, or
- there are 2 eligible convictions in the last 10 years.[20]
How much do they increase the penalties?
Typically, the sentencing enhancement of a prior conviction elevates the petty theft offense by 1 crime classification. However, some states treat any petty theft with a prior as a felony.
In California, for example, petty theft is typically a misdemeanor that carries up to 6 months in jail.[21] Petty theft with a prior is elevated one classification to become a wobbler. It can be prosecuted as either a:
- misdemeanor that carries up to 1 year in jail, or
- felony that carries up to 3 years in a California state prison.[22]
In Texas, committing any petty theft with two or more prior convictions for theft is a felony. This is true even if the petty theft involved something of trivial value. The penalties of a conviction would increase to:
- a jail sentence of at least 180 days but no more than 2 years, and/or
- a fine of up to $10,000.[23]
How is petty theft different from grand theft?
The crime of petty theft is a less serious offense than grand theft. However, not many states use the words “grand theft” to describe a particular offense. Most states make “theft” a crime and then list escalating penalties for higher threshold amounts.[24]
California is one of the few states that has a crime of “grand theft.” It is the crime of stealing:
- something over $950 in value,
- any amount of property if it was taken directly off someone’s person, also known as “grand theft person,”
- a firearm, or
- a motor vehicle, also referred to as “grand theft auto.”
Because the property’s value is higher, the sentencing is also higher for grand theft. In highly valued property cases, it can become a very serious felony offense.
What are some legal defenses to petty theft with a prior?
The criminal defense lawyers at our law firm often use one of the following legal defenses to allegations of petty theft with a prior:
- you did not commit petty theft,
- any prior convictions do not qualify for the sentencing enhancement, and/or
- you are being falsely accused of the offense.
By establishing an attorney-client relationship with a criminal defense attorney, you can determine which legal defense is best for your case.
Innocent of petty theft
The best defense is to show that you did not commit the petty theft you are being accused of. If successful, neither the sentencing enhancement nor the penalties for the petty theft would be imposed.
This often requires showing proof that you are innocent, like:
- an alibi,
- indications that you could not have been at the scene of the offense, or
- evidence that someone else committed the petty theft.
No qualifying priors
If prosecutors accuse you of petty theft with a prior conviction, they have the burden of proving that you have convictions necessary to trigger the sentencing enhancement. The enhancement should not be imposed if you can prevent them from doing so.
False allegations
Many people face petty theft charges because the person accusing them is acting under an ulterior motive. If you can show that the allegations are knowingly false, it can inject some doubts into the prosecutor’s case.
Legal References:
[1] See California Criminal Jury Instructions (CALCRIM) No. 1800.
[2] ARS 13-1802(G).
[3] California Penal Code section 484 PC.
[4] CRS 18-4-401(2)(b).
[5] NRS 205.240.
[6] New Mexico Statutes 30-16-1(C).
[7] California Penal Code 487 PC.
[8] ARS 13-707.
[9] California Penal Code 490 PC.
[10] NRS 193.150.
[11] New Mexico Statutes 30-16-1(B).
[12] New Mexico Statutes 30-16-1(C).
[13] Texas Penal Code 31.03(e)(1).
[14] Texas Penal Code 31.03(e)(2).
[15] Texas Penal Code 31.03(e)(3).
[16] Texas Penal Code 31.03.
[17] Utah Code 76-6-404.
[18] California Penal Code section 666 PC.
[19] Same.
[20] Utah Code 76-6-404.
[21] California Penal Code sections 488 and 19 PC.
[22] California Penal Code 666 PC.
[23] Texas Penal Code 12.35
[24] See, e.g., New Mexico (New Mexico Statutes 30-16-1).
