Proposition 47 and Petty Theft

California’s recent Proposition 47 (Prop 47) has reduced a number of former felonies to misdemeanors. One of Prop 47’s most sweeping changes to the Penal Code is its revision of California’s law of theft.

Prop 47’s provisions influence a large number of theft statutes. In this post, I explore Prop 47’s broad impact on the law of theft. I then dissect the language of the statutes that Prop 47 enacts and point out how some of them may end up increasing the penalties for petty theft for certain offenders. Finally, I explore how prosecutors may go about charging petty theft.

As a caveat to this post, I will not yet discuss the new shoplifting crime enacted at Penal Code section 459.5. In an earlier draft, I had planned to discuss shoplifting, but I found that Prop 47 petty theft and shoplifting were too complex to discuss in a single post. I will have a post on California's shoplifting law written soon.



Penal Code 490.2: Prop 47’s Broad Impact on the Law of Theft

Before Prop 47, many types of theft could be classified as grand theft – a potential felony. Types of grand theft included the theft of a vehicle, firearm, or horse, regardless of value. The theft of goods valued at more than $400 from somebody’s person was also classified as grand theft.

Prop 47 changes all of this by introducing Penal Code 490.2. This statute states:

(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

Penal Code section 487 and many of the code sections following and preceding section 487 lay out the various types of grand theft. While section 487(a) formerly defined grand theft as cases where the value of the goods stolen was greater than $950, 487’s various subsections, and other sections preceding and following 487 described situations where theft of goods valued less than $950 could be grand theft. Penal Code 490.2 effectively negates all of the specialized laws defining grand theft by establishing that any theft of goods valued less than $950 is petty theft.

Some of Prop 47’s reductions of sentences are easier to spot than others, since they change the language of each provision they revise. Penal Code 490.2 enacts far broader changes in a subtler manner by simply cancelling out numerous statutes’ definitions of grand theft.

Did Prop 47 Make Petty Theft a Wobbler for Violent Offenders and Sex Offenders?

At first glance, Penal Code section 490.2 seems to state that the only situations where the various statutory definitions of grand theft apply now are when the person charged has a prior conviction for an offense specified in Penal Code section 667(e)(2)(C)(iv). This list of offenses, as I have previously noted, is a fairly narrow list of extremely serious crimes. Additionally, people who have been convicted of crimes that require them to register as sex offenders may still be charged with grand theft under laws defining grand theft in cases involving less than $950.

But on second glance, it appears that Penal Code section 490.2 expands the range of punishments for these violent offenders and registered sex offenders. Section 490.2 starts out by stating that if somebody steals goods valued at less than $950, the crime will be a misdemeanor, which excludes the potential for it to be charged as a felony under the grand theft statutes. But the section goes on to state that "such person" may be charged with a felony if that person has a 667(e)(2)(C)(iv) prior or is a registered sex offender.

It isn't clear who "such person" is, since section 490.2 only discusses an offense, not a person, before making the reference to "such person." The most natural reading of the statute, however, is that "such person" is a person who has committed petty theft of property valued less than $950. This means that if somebody has a prior 667(e)(2)(C)(iv) conviction or is a registered sex offender, that person may be charged with felony petty theft if they steal any item valued less than $950 (and more than $50, since section 490.2(b) prevents the statute from applying to cases where theft may be charged as an infraction (see Penal Code § 490.1)).

There are a few ways that this reading of the statute may be resisted, but I don't think that either alternative reading will succeed.

One might argue that "such person" refers only to those people who would be charged with grand theft were it not for the section 490.2 reclassification of grand theft cases into petty theft cases. This reading could be bolstered by section 490.2 beginning with a reference to grand theft as defined in section 487 and other statutes.

This reading will probably not succeed, however, since the reference to grand theft is simply there to emphasize that section 490.2 overrides those other statutes' punishments for grand theft. The mention of other grand theft offenses is there to reference those laws, and not the people accused of violating those laws.

A more interesting argument against section 490.2  making petty theft a wobbler for certain offenders is that the expansive reading brings section 490.2 into conflict with Penal Code section 490, which states:

490. 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.

Section 490 seems to state that petty theft is a misdemeanor, and says nothing about charging petty theft as a misdemeanor. One challenging the broad reading of 490.2 can also emphasize that while section 490.2 takes pains to state that it is "notwithstanding" other laws defining grand theft, the statute is not similarly distinguished from statutes that define petty theft. Accordingly, the only reading of 490.2 that avoids any unstated inter-statutory conflict would be a reading that recognizes 490.2 to limit punishment for grand theft, but not to expand it for petty theft.

This argument, while interesting, has three problems. First, limiting section 490.2 to the scope indicated in its "notwithstanding" preamble would limit the scope of the statute's plain text.  The statute is broadly worded to cases involving theft of goods less than $950, and nothing in the statute (other than subsection (b)) limits that plain language. Second, interpreting the "notwithstanding" preamble of section 490.2 to limit the section's scope would defeat the purpose of the preamble. The first words of 490.2 are there to clear up conflicts with grand theft statutes and establish 490.2 as the final word on the issue. It seems strange to read this provision establishing 490.2's authority over other statutes as simultaneously limiting the statute's scope. Third, even if there is a direct conflict between section 490.2 and 490, section 490.2 would arguably be the winner in such a conflict since it is the most recently enacted statute.

While Prop 47 has been recognized as enacting laws that reduce criminal penalties, section 490.2 ends up increasing the penalties for petty theft for sex offenders and people with prior 667(e)(2)(C)(iv) convictions.

Charging Petty Theft After Prop 47

Prop 47's addition of Penal Code section 490.2 means that charging defendants with petty theft may end up being a less-complicated statutory endeavor. Previously, the definition of petty theft was spread across several statutes. Penal Code section 484(a) defines "theft" and provided the initial elements of the petty theft charge. Section 490 establishes that petty theft is a misdemeanor. Sections 484(a) - 487 are filled with sections and subsections that define instances of grand theft, and Section 488 states that "Theft in other cases is petty theft."

Because of this hodgepodge of statutes, petty theft charges only made sense if they were charged as Penal Code sections 484(a) - 488 offenses. 488 provided the definition of petty theft, but by defining it as a negative, it required prosecutors to include all of the non-petty theft statutes in the charge.

Section 490.2 could simplify the charging of theft. After all, the statute states that petty theft is theft of goods valued less than $95. That same section also states that petty theft is a misdemeanor. Since 488's negative definition of petty theft is no longer the sole statement of what petty theft is, prosecutors may be able to charge petty theft violations as a violation of 490.2 rather than as a violation of 484(a) - 488.

Section 490.2 admittedly does not define what "theft" means -- and prosecutors would at least need to keep section 484(a) in mind in order to state what it means for someone to have carried out the theft of goods. But with section 490.2 now containing a relatively complete statement of the petty theft crime, prosecutors may now be able to charge petty theft without listing a range of statutory provisions in the complaint.

If prosecutors still wish to charge petty theft under the old Penal Code 484 - 488 approach, however, that is still possible under Prop 47's new statutes. While Prop 47 updates, overrides, and in some areas complicates the law of theft, most of the old petty theft statutes remain in effect. The theft of goods valued over $50 and below $950 can be charged as a misdemeanor violation of sections 484(a) - 488 or as a violation of 490.2,