Grand theft conviction reduced to petty theft based on fair market value of merchandise

People v. Grant (Cal. Ct. App., Nov. 12, 2020, No. D076576) 2020 WL 6608321, at *1

 Summary: Kenneth Grant  stole merchandise from a Wilsons Leather outlet store where everything is sold 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. There was no evidence establishing that the comparable values represented the merchandise’s actual fair market values, and the only evidence of actual sales price was for  a few of the stolen products (totaling about $265). 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). The trial court sentenced Grant  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.

The Court of Appeal held that the trial court’s finding regarding the fair market value of the stolen merchandise was not supported by substantial evidence. The Court reduced  Grant’s grand theft conviction to petty theft, reverse his burglary conviction, and remand for resentencing.


Grant maintained that 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” attached to each stolen item without introducing any evidence to establish that the comparable values reflect the stolen merchandise’s actual fair market values.

Wilsons Leather’s merchandise displays 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.

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. The jury found Grant guilty of grand theft and burglary.

Grand theft or burglary requires value greater than $950

 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, 247 Cal.Rptr.3d 651, 441 P.3d 896; Lopez, supra, 9 Cal.5th 254 at p. 265, 261 Cal.Rptr.3d 759, 462 P.3d 499; People v. Jennings (2019) 42 Cal.App.5th 664, 670, 255 Cal.Rptr.3d 713.)

“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, 215 Cal.Rptr.3d 758, 391 P.3d 633 (Romanowski);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, 135 Cal.Rptr. 602 (Pena).

Here, everything … is discounted” from a displayed “comparable value” and “nothing is sold [at] full price”-so  substantial evidence does not support the jury’s finding that the fair market value of the merchandise he stole exceeded $950.

The prosecution introduced no evidence establishing that those comparable values reflect the merchandise’s fair market values. Although the jury was not required to use Wilsons Leather’s discounted sales prices, it was incumbent upon the prosecution to introduce evidence establishing those values. It failed to do so.

(See Lizarraga, 122 Cal.App.2d at p. 438, 264 P.2d 953 [fair market value is “not the value of the property to any particular individual”]; Pena, supra, 68 Cal.App.3d at p. 103, 135 Cal.Rptr. 602 [“If some stores would underprice the items or would give them away that would not be representative of the fair market value.”]; Tijerina, supra, 1 Cal.3d at p. 45, 81 Cal.Rptr. 264, 459 P.2d 680 [ “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].)

Because substantial evidence did not support the jury’s finding that Grant stole property valued at more than $950, substantial evidence did not support his convictions for grand theft or burglary. The Court modified  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, 54 Cal.Rptr.3d 766, 151 P.3d 1177 [“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, 79 P.2d 119 [reducing grand theft to petty theft].)


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.



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