The Criminal Docket


      July 2006

Volume I , Number  5 

TELEPHONE: (562) 804-8045

“If there’s punishment for petty theft with a prior conviction, isn’t there also punishment for attempted petty theft with a prior conviction?”

Attempt:  An attempted commission of a crime, as noted in section 664, occurs when an individual attempts to commit any crime and fails or is prevented or intercepted in its perpetration.   If the crime is punishable by imprisonment in county jail, the maximum possible punishment is one-half the term of imprisonment.  With limited exceptions, the maximum possible state prison punishment is also one-half of the prescribed term of imprisonment.  (Sections 664 (a) and (b), 3 California Criminal Law, 3rd, Punishment, section 241).  Witkin succinctly states that to constitute an attempt, there must be the specific intent to commit the crime and a direct ineffectual act done towards its commission.  (Witkin California Criminal Law, volume 1, Elements, section 53)   While the planning or intention of committing a crime are insufficient to constitute an attempt to commit a crime, there is an attempt when an individual takes steps in executing the offense.  (People v. Ross (1988) 205 Cal App 3rd 1548)

Theft:    Penal Code section 666 states that one is guilty of theft with a prior conviction if (1) he had been previously been convicted of petty or grand theft, auto theft, burglary, carjacking, robbery or felony receiving stolen property, and (2) had served at least one day in custody in any penal institution, and (3) is subsequently convicted of petty theft.   Without a prior conviction, section 490 states that the punishment for petty theft is up to six months in jail and/or a fine not exceeding $1,000.  A petty theft with a prior conviction is a “wobbler;” that is, it may be filed as a felony or a misdemeanor and, according to section 666, is punishable by imprisonment for up to one year in county jail or in state prison up to three years.

Case Law: In People v. Bean (1989) 213 Cal App 3rd 639 the defendant entered a plea of guilty to “attempted petty theft with a prior conviction.”    This resulted from his arrest for attempting to steal a videocassette recorder from a store.  The Court of Appeal nullified the conviction and returned the case to the trial court.  The appellate court said that the plea was void because he had pled guilty to a “noncrime,” attempted violation of Penal Code section 666. 

People v. Shabtay (2006) 138 Cal App 4th 1184 and Padilla v. Department of Alcoholic Beverage Control (1996) 43 Cal App 4th 1151 stated that the courts are required to give the plain meaning and interpretations of statutes when the law’s language is clear and unambiguous.  The words of the statute are to be given their “usual and ordinary meaning” and, if there is no ambiguity in the language, there is no reason to look behind the law to ascertain the legislature’s intent.  Since section 666 requires that an individual be conviction of theft, not attempted theft, after having previously been convicted of and sentenced in prior enumerated theft offenses. People v. Soriano (1992) 4 Cal App 4th 781)

Juveniles: A sustained petition in juvenile court is not considered a “conviction” within the meaning of section 666.  (In re Anthony R. (1984) 154 Cal App 3rd 772)

Summary:  People v. Bouzas (1991) 53 Cal 3rd 467 summarized section 666: the statute indicates the punishment for the current offense and uses the prior conviction as a factor increasing the possible punishment.  Section 666 does not establish a separate substantive offense of petty theft with a prior conviction, according to People v. Robinson (2004) 122 Cal App 4th 275; it is a sentencing statute that allows for petty theft to be punished as either a felony or a misdemeanor.  It provides an “alternate and elevated penalty” upon a finding of a prior qualifying conviction.  (People v. Murphy (2001) 25 Cal 4th 136, 155)


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