The amendment to Penal Code section 666, which took effect on September 9, 2010, applies retroactively. The statute once allowed punishment as a felony for “petty theft with a prior.” The new statute allows punishment as a felony for petty theft if the person has been convicted three or more times of petty theft, grand theft, auto theft, etc. and having served a term therefore in any penal institution or having been imprisoned therein as a condition of probation for that offense. Vinson’s conviction was not yet final when the new statute went into effect. The Attorney General conceded retroactivity and the new statute was applied to Vinson’s case.
Two Penal Code section 667.5, subdivision (b) enhancements could be considered as theft-related convictions and terms of incarceration for the purpose of meeting the new statutory requirements. Those, in addition to a separate conviction alleged as the basis for the felony allegation, added up to three theft offenses for which he had been incarcerated. The opinion points out an ambiguity in the statute and urges the Legislature to clarify the number of periods of incarceration required under the statute.