The legal definition of petty theft with a prior, as set forth in California Penal Code 666 PC, is committing the crime of California petty theft when you have BOTH of the following on your record:
- A conviction for a California theft crime for which you served time in jail or prison; AND
- A conviction for one of a select list of serious or violent California crimes (including sexually violent offenses, murder and gross vehicular manslaughter while intoxicated).1
Because ordinary 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.
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 custody.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!
Common legal defenses that may help you avoid the harsh penalties for petty theft with a prior include:
- You did not intend to steal the item;
- You believed the "stolen" item actually belonged to you;
- You were falsely accused; and/or
- You did not actually have the required qualifying priors on your record.
In order to help you better understand the law, 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. Previous conviction for a serious felony
- 1.3. Proving that you have the required prior convictions
- 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.
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,5
Petty theft charges frequently arise out of California shoplifting charges - 459.5 PC (also known as petty theft by larceny). 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:
- You have a qualifying prior conviction for a theft crime AND an additional qualifying prior conviction that together make you subject to the petty theft with a prior law (we'll explain below what this includes); and
- 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.
In order to face penalties for Penal Code 666 PC petty theft with a prior, you need to have at least one (1) 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
But simply having one of these theft crime convictions on your record will not subject you to Penal Code 666 PC penalties. In order for you to be sentenced under California's "petty theft with a prior" law, one of the following also needs to be true:
- You have one (1) or more prior convictions for theft or fraud from an elderly person in violation of California's elder abuse laws (this can be the theft conviction that makes you subject to PC 666 penalties);
- You have a prior sex crime conviction that requires you to register under California's sex offender registration law; OR
- You have a prior conviction for one of a select list of serious and/or violent felonies.9
The serious and/or violent felonies that qualify you for a "petty theft with a prior" conviction include:
- “Sexually violent offenses” under California law—which means sex crimes committed by use of force, violence, or threat of bodily injury or retaliation;
- Sex crimes against a child under the age of 14;
- Penal Code 187 PC murder or attempted murder;
- Gross vehicular manslaughter while intoxicated Penal Code 191.5;
- Solicitation to commit murder;
- Assault with a machine gun on a peace officer or firefighter;
- Possession of a weapon of mass destruction; and
- Any serious and/or violent felony that is punishable by life in prison or death.10
Example: When he is 19, Jose is convicted of grand theft auto. He serves time in prison for this offense.
Jose starts using cocaine in prison and is addicted when he is released. One night he causes a fatal accident while high. He is convicted of gross vehicular manslaughter while intoxicated.
This incident prompts Jose to turn his life around. After he gets out of jail the second time, he stays sober and finds work.
But ten years later, Jose is convicted of petty theft for shoplifting some clothing.
Because he has one theft conviction AND one very serious felony conviction on his record, Jose may be charged with petty theft with a prior for this incident.
Example: Bethany has a compulsive shoplifting problem. She is caught trying to steal a very expensive necklace from a department store and is convicted of grand theft, for which she serves 16 months in jail.
A month after she is released, Bethany is arrested again, this time for trying to shoplift several bottles of expensive perfume. She is charged with and convicted of petty theft and serves 6 months in jail.
Only days after her release, Bethany is arrested yet again--this time for trying to steal expensive knives from a housewares store.
Bethany has plenty of theft convictions on her record. But because she does not have one of the other required convictions, she may not be charged with petty theft with a prior under Penal Code 666.
Proposition 47's reform of California's petty theft with a prior law
Prior to November 2014, California's petty theft with a prior law was much more draconian.
Specifically, that law used to provide for "petty theft with a prior" penalties for anyone who was convicted of petty theft after accumulating three (3) prior theft convictions for which they served time in jail.
Defendants did not need to have an additional conviction for a sex crime, an especially serious violent crime, or elder abuse theft or fraud as they do now.12
But then California voters passed Proposition 47--which made Penal Code 666 into a much less punitive law.
If you were convicted of petty theft with a prior as a felony under the old version of the law -- and you would not be eligible for that sentence under the new version -- you may petition the court to have your conviction changed to a misdemeanor, and your sentence reduced accordingly.13
In most cases, the prosecutor will be required to prove that you have the qualifying prior convictions. 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 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.
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 jurors might then 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
Petty theft with a prior conviction is a wobbler in California law.
This means that the prosecutor may choose to try it as a misdemeanor OR as a felony, depending on:
- The facts of the case, and
- The defendant's criminal history.
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.17
But if it is charged as a felony, then the penalties for petty theft with a prior include a California state prison term of sixteen (16) months, two (2) years, or three (3) years.18
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.
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.
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 the 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."
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 one prior theft conviction and a sex crime or serious 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...
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.
- Penal Code 666 PC - Petty theft with a prior. (“(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been convicted 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 of imprisonment 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 the county jail not exceeding one year, or in the state prison. (b) Subdivision (a) 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 clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.”)
See also Penal Code 667(e)(2)(C)(iv) PC [list of offenses that will qualify one for PC 666 penalties]. (“(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”)
- 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.")
- Penal Code 666 PC - Petty theft with a prior, endnote 1, above.
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.")
- 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.")
- Penal Code 488 PC - Petty theft defined. ("Theft in other cases is petty theft.")
See also Penal Code 487 PC
- 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.")
- Penal Code 666 PC - .Petty theft with a prior, endnote 1, above.
- See same, Petty theft with a prior.
- Penal Code 667(e)(2)(C)(iv) PC [list of offenses that will qualify one for PC 666 penalties], endnote 1, above.
- California Penal Code 667.5 PC -- Prior prison terms; enhancement of prison terms for new offenses [compare to list of offenses that qualify a person for petty theft with a prior penalties].
- See also California Penal Code 1192.7(c) PC - Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section.
- Penal Code 666 PC – Petty theft; prior conviction of certain offenses; punishment [old version; prior to Prop 47]. (“(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. (b) Notwithstanding Section 490, any person described in paragraph (1) who, having been convicted 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 of imprisonment 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 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.”)
- Penal Code 1170.18 – Petition for recall of sentence; resentencing procedures; reduction of felonies to misdemeanors.
- CALCRIM 1850 - Petty Theft With a Prior Conviction.
See also 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.")
- See same, Petty Theft With Prior Convictions, Bench Notes.
- 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).
- Penal Code 666 PC - Petty theft with a prior, endnote 1, above.
- See same, Petty theft with a prior.
- CALCRIM 1800 - [Petty] Theft By Larceny
- 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.")
- 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.