Filed 11/12/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076576
Plaintiff and Respondent,
v.
(Super. Ct. No. SCS307603)
KENNETH A. GRANT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K. Moring, Judge. Affirmed in part as modified, reversed in part,
and remanded for resentencing.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa
Mandel and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Kenneth Grant admittedly stole merchandise from a
Wilsons Leather outlet store. The store sells everything at a discount,
determined by applying varying discount percentages to a “comparable value”
the store displays on tags attached to each product. At trial, the prosecution
introduced evidence showing that the cumulative comparable values of the
stolen merchandise exceeded the $950 felony theft threshold. However, the
prosecution introduced (1) no evidence establishing that the comparable
values represented the merchandise’s actual fair market values, and (2)
evidence of actual sales prices for only a few of the stolen products (totaling
about $265). Presumably relying on the comparable values, the jury found
the value of the stolen merchandise exceeded $950, and convicted Grant of
grand theft (Pen. Code, § 487, subd. (a))1 and burglary (§ 459).2 The trial
court sentenced him to three years in local custody.
On appeal, Grant contends his grand theft conviction must be reduced
to petty theft, and his burglary conviction must be reversed, because (1) the
trial court erroneously instructed the jury regarding the definition of fair
market value; (2) the trial court failed to instruct the jury regarding the
distinction between burglary and misdemeanor shoplifting; and (3)
substantial evidence does not support the finding that the value of the stolen
merchandise exceeded $950.
Even if the jury had been properly instructed—an issue we need not,
and do not, decide—we conclude its finding regarding the fair market value of
the stolen merchandise is not supported by substantial evidence.
Accordingly, we reduce Grant’s grand theft conviction to petty theft, reverse
his burglary conviction, and remand for resentencing.
1 Further undesignated statutory references are to the Penal Code.
2 The jury also found Grant guilty of misdemeanor battery (§ 242) for
shoving a store employee while fleeing. The battery conviction is not at issue
in this appeal.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2019, about one hour before closing time, Grant entered
the Wilsons Leather outlet store at the Las Americas outlet shopping mall in
San Ysidro. “[E]verything [at the mall] is discounted, [and] nothing is sold
[at] full value.” Grant put on a Cole Haan jacket that was for sale, then filled
shopping bags with seven pairs of store-brand gloves, four Karl Lagerfeld
backpacks, and two Karl Lagerfeld crossbody purses.
The assistant store manager, Pamela, heard Grant’s shopping bags
rustling and saw him filling them with merchandise. She told a sales
associate to call mall security.
Grant walked quickly toward the front door, where Pamela and the
sales associate were standing. When Pamela told Grant he needed to either
leave the merchandise or pay for it, Grant continued out the door and gave
Pamela a “little shove” with the bags to move her out of the way. The sales
associate took a picture of Grant with her cellphone as he fled the mall.
The employees showed the cellphone picture to a mall security guard,
who recognized Grant from prior encounters with him. Pamela called the
police, and officers responded a few hours later, after the store had closed and
all employees had left. An officer returned two days later, spoke with
Pamela, and took a report. Using the “comparable value” displayed on the
tag attached to each stolen item (rather than the discounted price at which
the store actually sold each item), Pamela reported that Grant stole more
than $1,000 worth of property. Grant was apprehended a few days later at
the San Ysidro port of entry.
Grant admitted at trial that he stole items from the Wilsons Leather
outlet, but he disputed the quantities, pricing, and whether he had shoved
Pamela. Specifically, Grant testified that stealing from stores is “what [he]
3
do[es] for a living,” so he is always on his “A-plus game” and is careful not to
exceed the $950 felony threshold and “never touch[es] anybody, because
[then] it’s a robbery.”
Grant was charged with one count each of grand theft (§ 487, subd. (a)),
burglary (§ 459), and battery (§ 242).3 After deliberating less than two hours,
the jury found him guilty as charged. The trial court sentenced Grant to
three years in local custody.
II. DISCUSSION
Grant contends the jury’s finding that he stole more than $950 worth of
merchandise—a finding on which both his grand theft and burglary
convictions depend—is not supported by substantial evidence because the
prosecution relied on the “comparable value” Wilsons Leather displayed on
the tag attached to each stolen item without introducing any evidence to
establish that the comparable values reflect the stolen merchandise’s actual
fair market values. We agree.
A. Background
Wilsons Leather’s assistant manager, Pamela, testified at trial about
the pricing of the merchandise Grant stole. She explained generally that
every product has a “full price that Wilsons Leather discounts” by varying
percentages. Tags attached to the merchandise display a “comparable value.”
The discounted sales price that customers actually pay is determined by
applying varying discount percentages—indicated on display racks and
shelves—to the “comparable value” displayed on the tag attached to an item.
3 Because we are resolving this appeal on substantial evidence grounds,
we need not address the distinctions between the various theft offenses,
which our high court recently discussed in People v. Lopez (2020) 9 Cal.5th
254 (Lopez).
4
The discount percentages change every Wednesday, and the store does not
track past discount percentages.
The police officer who responded on the night of the theft call, Officer
Jasmin Wong, returned to the store two days later (a Wednesday) and took
pictures of products virtually identical to those that were stolen and their
tags. Each tag appears to consist of a manufacturer’s hang tag, on which
Wilsons Leather placed a sticker displaying the “comparable value” and other
information—but no actual sales price. The pictures were admitted as trial
exhibits.
Regarding the stolen Cole Haan jacket, Pamela testified the tag
displayed a comparable value of $350. A display sign on the sales rack also
indicated a comparable value of $350, and a discounted sale price of $89.99
(about a 75 percent discount).
The tag corresponding to the seven stolen pairs of store-brand gloves
reflected a comparable value of $60 each. Pamela testified that “a typical
price point for those $60 gloves” would be $25 or $34.99, and she “think[s]” it
was $25 on the day of the theft. Officer Wong documented the sale price as
$25 in her report.
Turning to the Karl Lagerfeld products, the tags corresponding to the
four stolen backpacks reflected comparable values of $168, $168, $188, and
$198. The tag on the backpack with the $188 comparable value also reflected
an “MSRP” of $188, but Pamela testified she did not “know what MSRP
stands for.” The tag corresponding to the two stolen crossbody purses
reflected comparable values of $228.
Pamela testified Karl Lagerfeld is the most expensive brand that
Wilsons Leather sells, but she did not know what discount percentages
applied to the stolen merchandise on the day of the theft. A picture of a Karl
5
Lagerfeld display cabinet at the store indicated a 60 percent discount rate.
Pamela confirmed Officer Wong took this picture before the weekly price
change, and that the discount sign in the picture was in the same place as the
discount sign applicable to the stolen backpacks and purses. Nevertheless,
she claimed the 60 percent discount rate did not apply to the stolen
merchandise. She said 40 percent is a more typical discount rate at the store,
but she “d[id]n’t remember on March 25th what . . . the discount or the sale
price was for [the] Karl Lagerfeld bags.” Pamela acknowledged she did not
“have any experience selling Karl Lagerfeld outside of Wilsons Leather.”
During closing arguments, the prosecutor maintained Grant was guilty
of grand theft and burglary (instead of petty theft) because the comparable
values displayed on the stolen merchandise’s tags cumulatively exceeded
$950. Defense counsel essentially conceded Grant had committed petty theft,
but urged the jury not to use the comparable value because “[w]e know
nothing about it”—“what is it . . . compare[d] . . . to?”
The jury was instructed that to find Grant guilty of grand theft and
burglary, it had to find that the prosecutor proved beyond a reasonable doubt
that the fair market value of the stolen merchandise exceeded $950;
otherwise, the jury could convict Grant only of petty theft as a lesser included
offense of grand theft. After deliberating less than two hours, the jury found
Grant guilty of grand theft and burglary.
B. Legal Principles
To establish that Grant committed either grand theft or burglary, the
prosecution bore the burden of proving he stole property valued at more than
$950. (§§ 484, 490.2, 459, 459.5; People v. Valenzuela (2019) 7 Cal.5th 415,
420; Lopez, supra, 9 Cal.5th 254 at p. 265; People v. Jennings (2019) 42
Cal.App.5th 664, 670.)
6
“In determining the value of the property obtained, for the purposes of
[theft offenses], the reasonable and fair market value shall be the test.”
(§ 484; see People v. Romanowski (2017) 2 Cal.5th 903, 914 (Romanowski)
[“section 484 is a definitional section” that “sets the ground rules for how . . .
[s]pecific theft crimes . . . set out in a variety of other sections” of the Penal
Code “are [to be] adjudicated”]; People v. Seals (2017) 14 Cal.App.5th 1210,
1215.)
The fair market value of an item is “the highest price obtainable in the
market place” as between “a willing buyer and a willing seller, neither of
whom is forced to act.” (People v. Pena (1977) 68 Cal.App.3d 100, 103 (Pena);
see Romanowski, supra, 2 Cal.5th at p. 915.) “Put another way, ‘fair market
value’ means the highest price obtainable in the market place rather than the
lowest price or the average price.” (Pena, at p. 104.) Fair market value is
“not the value of the property to any particular individual.” (People v.
Lizarraga (1954) 122 Cal.App.2d 436, 438 (Lizarraga).)
Fair market value may be established by opinion or circumstantial
evidence. (See People v. Zamudio (2008) 43 Cal.4th 327, 357-358; Lizarraga,
supra, 122 Cal.App.2d at p. 437 [testimony of experienced furriers sufficient
to establish value of stolen fur pieces]; People v. Williams (1959) 169
Cal.App.2d 400, 403 (Williams) [testimony by experienced salesclerk
sufficient to establish value of stolen suits].) “[T]he price charged by a retail
store from which merchandise is stolen” is also “sufficient to establish the
value of the merchandise,” absent proof to the contrary. (People v. Tijerina
(1969) 1 Cal.3d 41, 45 (Tijerina).) Jurors may also “rely on their common
knowledge” in determining the value of an item. (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1366 (Ortiz) [“inference by the jurors was not mere
7
speculation, but was instead reasonably based on common knowledge
regarding the value of late-model BMW’s”].)
“ ‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume in support of the judgment the existence of
every fact the trier of fact reasonably could infer from the evidence.
[Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
“Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.” (In re Michael D. (2002)
100 Cal.App.4th 115, 126 (Michael D.).) However, “[a] reasonable inference
may not be based on suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guesswork; a finding of fact must be an
inference drawn from evidence rather than a mere speculation as to
probabilities without evidence.” (People v. Rekte (2015) 232 Cal.App.4th
1237, 1247 (Rekte).) “ ‘ “By definition, ‘substantial evidence’ requires evidence
and not mere speculation.” ’ ” (People v. Ramon (2009) 175 Cal.App.4th 843,
851.)
C. Analysis
In light of Wilsons Leather’s pricing structure—under which
“everything . . . is discounted” from a displayed “comparable value” and
“nothing is sold [at] full price”—we agree with Grant that substantial
evidence does not support the jury’s finding that the fair market value of the
merchandise he stole exceeded $950.
8
Most fundamentally, although the prosecution introduced photographic
and testimonial evidence establishing the comparable values Wilsons Leather
displayed on the tags attached to the stolen merchandise, the prosecution
introduced no evidence establishing that those comparable values reflect the
merchandise’s fair market values. The pictures of the products’ tags,
themselves, did nothing more than show the displayed comparable values.
And the assistant manager (Pamela) established only that those comparable
values were not the prices that Wilsons Leather actually charged. The fact
that she testified one of the representative tags featured both a comparable
value and an MSRP is of no moment in light of her testimony that she did not
know the meaning of MSRP. Moreover, because the comparable value and
MSRP were the same, and because Wilsons Leather sells nothing at its
comparable value, it necessarily follows that Wilsons Leather also did not sell
this item at MSRP.
Nor did Pamela offer any opinion about the merchandise’s fair market
value. To the contrary, she expressly stated she did not “have any experience
selling Karl Lagerfeld [backpacks or crossbody purses] outside of Wilsons
Leather.” In this way, her testimony and expertise differed from those of the
experienced furriers in Lizarraga, supra, 122 Cal.App.2d at page 437, and the
experienced suit salesclerk in Williams, supra, 169 Cal.App.2d at page 403,
whose testimony was sufficient to establish the fair market value of stolen
merchandise in those cases.
To be sure, “circumstantial evidence and any reasonable inferences
drawn from that evidence” may constitute substantial evidence. (Michael D.,
supra, 100 Cal.App.4th at p. 126.) But the record before us contains no
evidence from which the jury could reasonably have inferred that the
merchandise’s comparable values reflected their fair market values. (Rekte,
9
supra, 232 Cal.App.4th at p. 1247 [“a finding of fact must be an inference
drawn from evidence rather than a mere speculation as to probabilities
without evidence”].) This is particularly relevant in the context of an outlet
store that sells everything at a discount.4
Defense counsel’s query during closing argument— “what is [the
comparable value] . . . compare[d] . . . to?”—illustrates the prosecution’s
evidentiary shortcoming. Was the stolen Wilsons Leather merchandise
identical to merchandise sold at traditional retail stores at prices equal to
Wilsons Leather’s assigned comparable values? Or was the stolen
merchandise of lesser quality (e.g., made from a lower grade of leather, or
4 Comparative-price advertising has been the subject of much legislation,
regulation, and litigation because of concerns that advertised comparative
prices do not correspond to prices actually charged for truly comparable
products. (See, e.g., Bus. & Prof. Code, § 17501 [prohibiting misleading
comparisons to “former price[s]”]; Cal. Code Regs., tit. 4, § 1301 [noting that
regulated price comparisons often uses phrases such as “ ‘formerly -,’
‘regularly -,’ ‘usually -,’ ‘originally -,’ ‘reduced from ______,’ ‘was ______
now _______,’ [and] ‘____% off.’ ”]; 16 C.F.R. § 233.2(c) [advising that “the
price advertised as being the price of comparable merchandise [should] not
exceed the price at which such merchandise is being offered by representative
retail outlets in the area”]; Shaulis v. Nordstrom, Inc. (1st Cir. 2017) 865 F.3d
1, 5 [consumer class action alleging that “although price tags on Nordstrom
Rack products contain both a sale price and a ‘Compare At’ price that
purports to represent a bona fide price at which Nordstrom (or some other
retailer) formerly sold those products, Nordstrom, in reality, sells goods
manufactured by designers for exclusive sale at its Nordstrom Rack stores,
which means that such items were never sold—or intended to be sold—at the
‘Compare At’ prices advertised on the price tags.”]; John v. AM Retail Group,
Inc. (S.D.Cal., Mar. 20, 2018, No. 17CV727-JAH (BGS)) 2018 WL 1400718, at
*2 [consumer class action alleging that a sign advertising a Wilsons Leather
“wallet as having a ‘Ticket’ price of $60 and a ‘Sale’ price of $23.99” was
misleading because “the particular wallet . . . was not offered for sale at the
‘Ticket’ price of $60.00 at any store in California, within ninety days before
Plaintiff’s purchase.”].)
10
blemished) and intended for sale exclusively at a discount outlet store? If not
identical, why is the higher quality merchandise’s fair market value reflective
of the stolen merchandise’s comparable value? If identical, was the
merchandise ever offered for sale—let alone actually sold—by anyone at a
price equal to Wilsons Leather’s assigned comparable value? Or was the
comparable value merely illusory, intended to give consumers the impression
they were getting a bargain? The evidence the prosecution introduced did not
address any of these questions. Without answers to these types of questions
(e.g., by Pamela, another Wilsons Leather employee, or a qualified industry
expert), the jury could only have speculated that the comparable values
Wilsons Leather displayed on the tags attached to the stolen merchandise
reflected their fair market values.
Of course, jurors may generally use their common knowledge to
determine the fair market value of property. But the only case the Attorney
General cited to support this proposition involved jurors’ common knowledge
that a two-year-old BMW generally has substantial value. (See Ortiz, supra,
208 Cal.App.4th at pp. 1359, 1366.)5 Here, however, where the key issue at
trial was the precise value of particular merchandise, we are not satisfied
that the jurors’ common knowledge provided the required precision.
This is not to say the jury was required to use Wilsons Leather’s
discounted sales prices. (See Lizarraga, 122 Cal.App.2d at p. 438 [fair
market value is “not the value of the property to any particular individual”];
Pena, supra, 68 Cal.App.3d at p. 103 [“If some stores would underprice the
5 The issue in Ortiz was not the precise determination of the BMW’s fair
market value but, rather, whether the vehicle had sufficient value that the
jury reasonably could infer the defendants committed a kidnapping with the
intent to take the BMW. (Ortiz, supra, 208 Cal.App.4th at pp. 1365-1366.)
11
items or would give them away that would not be representative of the fair
market value.”]; Tijerina, supra, 1 Cal.3d at p. 45 [ “the price charged by a
retail store from which merchandise is stolen” is “sufficient to establish the
value of the merchandise,” absent proof to the contrary].) Notably, except for
the stolen jacket (about $90) and gloves ($175 for seven pairs), the
prosecution introduced no evidence establishing the discounted sales prices
for the other stolen merchandise. Pamela expressly testified she was
unaware of the discount percentages that applied to the stolen Karl Lagerfeld
bags on the day of the theft, despite acknowledging a picture of the display
shelves had a sign indicating a 60 percent discount rate. But if the
prosecution wished to establish that the stolen products’ fair market values
were something other than the prices Wilsons Leather actually charged, it
was incumbent upon the prosecution to introduce evidence establishing those
values. It failed to do so.
Because substantial evidence does not support the jury’s finding that
Grant stole property valued at more than $950, substantial evidence does not
support his convictions for grand theft or burglary. Accordingly, we modify
Grant’s conviction for grand theft to reflect a conviction for petty theft, and
reverse his conviction for burglary. (See §§ 1181(6), 1260; People v. Navarro
(2007) 40 Cal.4th 668, 671 [“an appellate court that finds that insufficient
evidence supports the conviction for a greater offense may, in lieu of granting
a new trial, modify the judgment of conviction to reflect a conviction for a
lesser included offense”]; People v. Simpson (1938) 26 Cal.App.2d 223, 229-
230 [reducing grand theft to petty theft].)
12
III. DISPOSITION
The conviction on count 2 (burglary) is reversed. The conviction on
count 1 (grand theft) is modified to reflect a conviction of petty theft, a
misdemeanor. As modified, the judgment is affirmed as to count 1 (petty
theft) and count 3 (battery). The matter is remanded to the trial court for
resentencing.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
13