Amendments to Penal Code 666 to Apply Retroactively

March 30, 2011

California Penal Code 666 -- more commonly known as “petty theft with a prior” -- allows prosecutors to file a petty theft charge as a felony rather than a misdemeanor if the offender has three or more prior theft-related convictions.

Historically, only one prior was required to elevate a subsequent petty theft to a felony charge. In September 2010, however, the California legislature amended Penal Code 666 to require three or more -- rather than just one -- prior conviction.

In People v. Vinson, the Fifth District Court of Appeals ruled Monday that the amendment applies retroactively. Thus for a person currently facing prosecution for a theft that occurred even before September 2010, the state must prove three priors rather than just one. But the amendment is only retroactive to the date of the amendment. Convictions occurring before September 2010 based on the old “one prior” law will not be overturned.

One ambiguity in the new law remains. The text of Penal Code 666 requires that the offender must have served at least one day of jail time for the prior conviction. Now, however, it’s not clear whether there must have been jail for all three prior convictions -- or whether jail time for any one of the priors satisfies the requirement.