California Penal Code section 490.1 lets a prosecutor charge petty theft as an infraction, rather than a misdemeanor, when the property taken is worth $50 or less and the person charged has no prior theft-related conviction. An infraction means a fine of up to $250 and no criminal record. A misdemeanor means possible jail time and a conviction that shows up on background checks. The choice belongs to the prosecutor, not the defendant.1California Legislative Information. California Penal Code 490.1 – Petty Theft
The Two Conditions You Must Meet
Two things have to be true before infraction treatment is even on the table:
- The money, labor, or property taken is worth $50 or less.
- You have no prior theft or theft-related conviction of any kind.
Miss either one and the case proceeds as standard misdemeanor petty theft under Penal Code 490. Meet both and you are eligible, but not entitled. The statute gives the prosecutor full discretion. Many offices rarely use the infraction option, and if the circumstances look aggravated, say, theft from a vulnerable person or a scheme involving deception, you can still be charged with a misdemeanor over a few dollars’ worth of goods.
How the $50 Value Is Calculated
The $50 ceiling is a hard line. At $50.01, the infraction option disappears. California measures value by “reasonable and fair market value,” which for new retail merchandise usually starts at the sticker price.2California Legislative Information. California Penal Code 484
One detail catches people off guard: sales tax counts. In People v. Seals (2017), the Court of Appeal held that when a retailer adds sales tax reimbursement to an item’s price, the final tax-inclusive amount is what a willing buyer actually agrees to pay, so it is part of fair market value.3Justia Law. People v. Seals (2017) A $47.99 item in a county with a high sales tax rate can clear $50 once tax is added. If you are anywhere near the threshold, assume the prosecution will use the tax-inclusive figure.
What Counts as a Prior Theft-Related Conviction
The statute disqualifies anyone with “any other theft or theft-related conviction.” It does not list specific offenses, and that generality cuts against defendants. Prior convictions for petty theft, grand theft, shoplifting, burglary, robbery, carjacking, receiving stolen property, or identity theft would almost certainly count. A theft-related conviction from another state can also disqualify you.
The word “conviction” matters. An arrest that was dismissed, a charge reduced to a non-theft offense, or a case resolved through diversion without a conviction should not count. Expunged convictions sit in a grayer area, and prosecutors sometimes argue they still count as priors for certain purposes.
Infraction Penalty vs. Misdemeanor Penalty
The gap between the two outcomes is large for such a low-dollar offense.
An infraction under PC 490.1 carries a maximum fine of $250. No jail time is possible. In severity, it sits closer to a traffic ticket than a crime.
A misdemeanor petty theft conviction under PC 490 is punishable by up to six months in county jail, a fine of up to $1,000, or both.4California Legislative Information. California Penal Code 490 First-time shoplifting cases rarely produce actual jail time, but the conviction itself causes problems that last far longer than any sentence.
Rights You Give Up With Infraction Treatment
When a case is charged as an infraction, two constitutional protections fall away. Under Penal Code 19.6, a person charged with an infraction has no right to a jury trial and no right to a court-appointed attorney at public expense.5California Legislative Information. California Penal Code 19.6 You can still hire your own lawyer. The court will not appoint one for you.
For most people, that trade is worth it. No possible jail time and no criminal record is a strong result in exchange for a jury trial you probably were not going to win. But if you believe you have a real defense and want to fight, infraction treatment narrows your options. In some situations, a defendant may actually prefer the misdemeanor track to preserve full trial rights and pursue an outright acquittal. That calculation is worth running with a defense attorney before accepting any resolution.
Will It Show Up on a Background Check
This is where the infraction classification pays off most. A misdemeanor theft conviction creates a criminal record that appears on standard background checks and can affect job applications indefinitely. An infraction generally does not. Because infractions typically do not involve fingerprinting or booking, they often never enter the databases that employers search.
There are exceptions. Certain government positions, security-clearance jobs, and roles at schools or with vulnerable populations may trigger deeper searches that could surface an infraction. The original arrest, if there was one, may still appear in some records even if the final disposition was an infraction. If your job depends on a clean record, verify what shows up rather than assuming.
The Civil Demand Letter From the Store
The criminal case is not the only financial consequence. California gives merchants a separate civil remedy that is completely independent of what the prosecutor decides. Under Penal Code 490.5, a store can demand between $50 and $500 in civil damages from anyone who unlawfully takes merchandise, plus the retail value of the item if it cannot be resold.6California Legislative Information. California Penal Code 490.5
In practice, this usually arrives as a “civil demand letter” from a law firm representing the retailer, often for a flat amount in the $200 to $400 range. Ignoring it allows the merchant to pursue the claim in small claims court. Paying it does not affect your criminal case, and refusing to pay it does not make the criminal charge worse. The two tracks run separately, which is why people are often blindsided by a demand letter weeks after they thought the matter was closed.
Immigration Consequences for Non-Citizens
For non-citizens, even a low-value theft case can trigger serious immigration problems. Federal courts in the Ninth Circuit, which covers California, have held that petty theft qualifies as a “crime involving moral turpitude,” a category that can make a non-citizen deportable or inadmissible.7U.S. Court of Appeals for the Ninth Circuit. Criminal Issues in Immigration Law
There is a narrow escape hatch. Federal immigration law provides a “petty offense exception” when three conditions are met: the person has only one crime involving moral turpitude, the maximum possible penalty did not exceed one year, and the actual sentence imposed was six months or less.8U.S. Department of State. 9 FAM 302.3 – Ineligibility Based on Criminal Activity A PC 490.1 infraction, with its $250 maximum fine and no possible jail time, fits well within this exception. A misdemeanor under PC 490 also qualifies on paper, but the stakes are high enough that any non-citizen facing a theft charge should talk to an immigration attorney before entering any plea.
If You Have Prior Theft Convictions, This Door Is Closed
Any prior theft-related conviction eliminates infraction eligibility, and recent changes have made the alternatives considerably steeper. California voters passed Proposition 36 in November 2024, adding Penal Code 666.1. Anyone with two or more prior convictions for offenses like petty theft, grand theft, shoplifting, burglary, robbery, carjacking, receiving stolen property, or identity theft now faces felony punishment for a subsequent petty theft or shoplifting, even for amounts under $950.9California Secretary of State. Proposition 36 Text of Proposed Laws
Prop 36 did not amend PC 490.1 directly, and the infraction option for first-time offenders stealing $50 or less is still available. The point for anyone with a theft history is simpler: the infraction path is already closed, and the ceiling on what a prosecutor can charge instead has gone up.