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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.
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:
Broadly speaking, theft is the criminal offense involving the following elements of the crime:
The threshold amount varies by state. For example, it is:
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:
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:
Most petty theft laws do not mention how the property was taken. Petty theft can be committed by way of:
Petty theft is generally a misdemeanor. Convictions for these offenses carry less than a year in county jail. They will also carry:
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.
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.
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:
Some states, like Utah, only enhance the sentence for certain theft offenses. There, the sentence for petty theft is only enhanced if:
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]
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:
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:
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:
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:
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.
The criminal defense lawyers at our law firm often use one of the following legal defenses to allegations of petty theft with a prior:
By establishing an attorney-client relationship with a criminal defense attorney, you can determine which legal defense is best for your case.
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:
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.
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).
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.