Can a violation of section 666 of the California Penal Code be considered a felony?

Effective January 1, 2014, section 666 was amended to add convictions pursuant to subdivisions (d) or (e) of section 368 to those triggering its application. (See Former 666, subd. (b), effective January 1, 2014 through November 4, 2014.) The statute was amended again, effective November 5, 2014, after voters approved Proposition 47 on November 4, 2014. Under the current statute, "a violation of section 666 can be a felony only if (1) the current conviction is for petty theft, (2) the defendant has served a term of imprisonment for certain specified felonies, including robbery, and (3) the defendant is required to register as a sex offender or has a prior conviction for a violent or serious felony offense listed in section 667, subdivision (e)(2)(C)(iv), or for elder abuse in violation [of] section 368, subdivisions (d) or (e)." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1330.) Defendant's counsel represents that defendant successfully petitioned for recall of his sentence on the petty theft conviction pursuant to Proposition 47.

^3. This argument is tantamount to a claim-of-right defense, which "provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938.) Both defendant and the People recognize this in their briefing, but defendant did not request and the trial court did not sua sponte deliver a jury instruction on this defense. We need not and do not consider whether either defense counsel or the trial court erred, however; defendant has forfeited any potential issue by not presenting it for our review. (See People v. Clayburg (2012) 211 Cal.App.4th 86, 93.)

^4. As the court of appeal explained in People v. Tardy (2003) 112 Cal.App.4th 783, 787, fn. 2, section 666 technically is not a sentencing "enhancement" because it does not add an additional period of imprisonment to the base term for petty theft. (See Cal. Rules of Court, rule 4.405(3).)