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Criminal Defense Information for Petty Theft (Cal. Penal Code s. 488)

  1. What is Petty Theft?
  2. What are the necessary elements to be found guilty of Petty Theft?
  3. What is the sentence / punishment for Petty Theft?
  4. What are possible defenses to charges of Petty Theft?
  1. What is Petty Theft?

    Petty Theft is any theft that is not deemed to be grand theft. Cal. Pen. Code s. 488 Opens in New Window That essentially means that a petty theft is any theft that is not:

    These are not all instances that constitute grand theft, but they are the majority of them. In all non-grand theft cases, the theft is Petty Theft.

  2. What are the necessary elements to be found guilty of Petty Theft?

    To prove the defendant committed Petty Theft, the state must show that the defendant:

    1. Took something from another person or business or;
    2. Fraudulently appropriated property or labor; and
    3. Intended to deprive the owner of the property.

    Cal. Pen. Code s. 484 Opens in New Window.

    If the prosecutor is alleging a felony Petty Theft under Cal. Pen. Code s. 666 Opens in New Window, the prosecutor also has to prove the prior convictions on which he is basing the felony status.

  3. What is the sentence / punishment for Petty Theft?

    Petty Theft is generally a misdemeanor and carries up to six months in jail and/or a fine of up to $1,000. Cal. Pen. Code s. 490 Opens in New Window.

    Petty Theft of something worth $50 or less may be charged as an infraction rather than a misdemeanor, if (and only if) the defendant has no other theft or theft-related convictions. The prosecutor has sole discretion on whether to do so. If the charge is reduced to an infraction, the maximum penalty is a $250 fine. Cal. Pen. Code s. 490.1 Opens in New Window.

    Additionally, if the defendant has prior theft convictions, he may be facing felony Petty Theft charges under Cal. Pen. Code s. 666 Opens in New Window. Cal. Pen. Code s. 666 Opens in New Window is often referred to as "Petty Theft with a prior".

    Petty Theft with one prior is a wobbler and may be treated as a felony. If the defendant has only one prior, the prison term is 16 months, two years, or 3 years. Cal. Pen. Code s. 666 (b) Opens in New Window.

    If the defendant has two theft priors, the prison term will be governed by Cal. Pen. Code s. 1170 (h) Opens in New Window.

  4. What are possible defenses to charges of Petty Theft?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    If the prosecutor can prove all the elements of Petty Theft, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Petty Theft, some of these justifications include:

    • Permission from the other person (e.g., lending of the property, gift of the property);
    • Alibi;
    • The defendant owned the property;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Someone framed the defendant;
    • Entrapment; and
    • Statute of Limitations.
See also, Carjacking, Embezzlement, Grand Theft, Robbery.