People v. Portillo ( 2023 )

Filed 5/15/23 (see concurring opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315241
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA127308)
v.
JOSE PORTILLO et al.,
Defendants and
Appellants.
APPEAL from judgments of the Superior Court of
Los Angeles County, Victor D. Martinez, Judge. Affirmed with
directions.
Jeffrey Manning-Cartwright, under appointment by the
Court of Appeal, for Defendant and Appellant Jose Portillo.
Richard M. Doctoroff, under appointment by the Court of
Appeal, for Defendant and Appellant Orlando Portillo.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Jose Portillo and Orlando Portillo 1 appeal from judgments
of conviction entered after a jury found them each guilty of one
count of grand theft (Pen. Code, § 487, subd. (a)). 2 Jose and
Orlando contend there was insufficient evidence to support their
convictions because the evidence failed to establish the value of
the stolen items—15 boxes of adjustable dumbbells—exceeded
$950. The only evidence of the dumbbells’ value was the
testimony of the manager of the warehouse facility where the
theft occurred, who testified to the prices listed on three retailers’
websites for the same product. Jose and Orlando contend this
testimony was inadmissible hearsay because it was offered for
the truth of the dumbbells’ value.
We conclude evidence of a retail price for a stolen item,
whether based on an online listing or a brick-and-mortar store
price tag, is admissible for the nonhearsay purpose of showing
that a retailer is advertising the item for a specified price in the
marketplace. This price, in turn, is circumstantial evidence of
the fair market value of the item, defined under California law as
the highest price obtainable in the marketplace between a willing
buyer and a willing seller. The jury need not decide the truth of
whether a specific retailer would sell the item for the advertised
price or the value the retailer places on the item, nor should the
jury consider the evidence for these hearsay purposes. A
defendant is always free to introduce evidence that the retailer is
1 We refer to Jose Portillo and Orlando Portillo by their first
names to avoid confusion.
2 Further undesignated statutory references are to the Penal
Code.
2
not willing to sell the item for the listed price (i.e., it is
mismarked or unavailable), or evidence of lower prices from other
retailers. But this goes to weight, not admissibility. Therefore,
the three online prices were admissible as circumstantial
evidence of the fair market value of the dumbbells.
Orlando also contends there was insufficient evidence he
committed theft because only Jose was caught removing the
dumbbells from the warehouse loading dock. However, there was
substantial circumstantial evidence Orlando aided and abetted
the theft. Finally, Jose and Orlando contend the trial court erred
in ordering them to pay the cost of probation services because the
statutory authorization for charging defendants probation
services fees was repealed by Assembly Bill No. 1869 (2019-2020
Reg. Sess.) (Stats. 2020, ch. 92, § 47) (Assembly Bill 1869),
effective July 1, 2021. Although the court’s minute order does not
provide that Jose and Orlando must pay the cost of probation
services, we direct the court to correct the oral pronouncement of
judgment to reflect that Jose and Orlando are not responsible for
paying the costs of probation services. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
1. The events of January 23, 2021
At approximately 1:39 a.m. on Saturday, January 23, 2021,
Los Angeles County Sheriff’s Deputy Virginia Bynum was on
routine patrol in the City of Industry when she noticed a gate
was open at the Comptree warehouse facility on Brea Canyon
Road. Deputy Bynum drove into the facility to investigate, where
3
she noticed a vehicle with an interior light on backed up to a
loading dock next to a freight trailer.
Deputy Bynum approached the vehicle, a silver sports
utility vehicle (SUV), and found Jose loading cardboard boxes
into the back. 3 The boxes were labeled “‘Dialtech Selective
Dumbbell.’” When Deputy Bynum approached Jose, he was
extremely nervous and was looking around. The SUV was
parked next to a 45-foot freight trailer, which had its cargo doors
open and was backed up to the loading dock. The loading dock
area was completely dark, with the only illumination coming
from inside the SUV. Deputy Bynum determined the boxes in
the SUV were similar to those inside the trailer.
Detective Bynum estimated the loading dock platform was
approximately four to four-and-a-half feet above the ground. 4
Because of the height of the platform, Deputy Bynum had to
assist her partner in climbing up onto the loading dock. After
placing Jose under arrest, Deputy Bynum helped her partner
unload the dumbbells from the SUV and found them to be “very
heavy.” 5 A total of 15 boxes of dumbbells were unloaded from the
SUV.
Los Angeles County Sheriff’s Deputy Richard Muehlich
responded to Deputy Bynum’s call for backup. Upon arrival, he
3 Deputy Bynum identified Jose in court.
4 Comptree manager Johnny Lee estimated the loading dock
platform was three feet high. Photographs of the loading dock
taken during the daytime were admitted at trial. It appears from
the photographs that the platform was at least four feet high.
5 Photographs of the cardboard boxes stacked in the rear of
the SUV were admitted at trial. The box label stated the
dumbbells weighed 25 kilograms (about 55 pounds).
4
conducted a search of the Comptree facility for additional
suspects. After about 35 minutes searching the property, Deputy
Muehlich found Jose’s brother Orlando 6 underneath a semi-
trailer truck parked at the other end of the loading dock.
Orlando was balanced on top of the six-inch axle of the truck.
Deputy Muehlich was wearing a body camera, and an audio-video
recording of their encounter was played for the jury. 7 Asked why
he was there, Orlando told Deputy Muehlich he met a friend
named Rick and borrowed Rick’s black Nissan Versa. Orlando
explained he was hiding under the truck because “it was raining
a long time ago” and “[his] brother was gonna come pick [him] up
or something,” but Orlando “fell asleep.” Orlando did not know
Rick’s last name or have any information about Rick other than
that he lived in Pomona. Orlando was also unable to provide the
address of the Comptree facility or name any of the surrounding
streets. Deputy Muehlich searched but could not find a Nissan
Versa or similar car parked in the area.
Deputy Muehlich’s body camera video showed Orlando was
wearing a hooded jacket. Deputy Muehlich searched Orlando
and found a functioning headlamp in his pocket, but Orlando did
not have a crowbar or other tools that might be used to pry open
6 The parties stipulated that Jose and Orlando are brothers.
7 The jury was provided a transcript of Deputy Muehlich’s
encounter with Orlando. Deputy Muehlich read Orlando his
rights under Miranda v. Arizona (1966) 384 U.S. 436. Portions of
the body camera recording and transcript were redacted based on
Jose’s objection the interview implicated Jose and, if admitted,
would violate his right to cross-examine Orlando under People v.
Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968)
391 U.S. 123.
5
a door. Deputy Muehlich also recovered a wallet containing a
California identification card bearing Orlando’s name from the
SUV, between the passenger seat and center console.
At around 8:30 a.m. on the day of the theft, Johnny Lee,
Comptree’s warehouse manager, learned of the incident after
seeing he had many unanswered calls from the alarm company.
In preparation for a meeting with Los Angeles County Sheriff’s
Detective Rudy Zamora two days later, Lee reviewed the
surveillance footage of the loading dock from the morning of the
incident. Lee observed two individuals coming out of the SUV
whom he did not recognize. Lee determined from the video and
from his subsequent inspection of the premises that the items
being removed from the freight trailer were boxes of dumbbells.
Lee had not given permission to anyone to take boxes from the
trailer on January 23, 2021. 8 Lee provided the surveillance video
to Detective Zamora.
Detective Zamora reviewed the surveillance video and
testified about its contents. An excerpt of the video was played
for the jury, including the seven minutes leading up to Deputy
Bynum’s arrival. The field of vision covered by the surveillance
camera included the parking lot where the SUV and freight
trailer were parked, but it did not include the loading dock. At
the beginning of the video excerpt, an SUV pulls into the facility
and backs up toward the loading dock. A man in a hooded jacket
emerges from the passenger’s side of the SUV, followed by a man
8 Lee testified that at about 1:39 in the morning, only a
delivery company driver would typically be at the Comptree
facility. He had a relationship with the drivers and did not
recognize either of the two men as one of the drivers with whom
he worked.
6
(Jose) in a long-sleeve shirt coming from the driver’s side. Jose
opens the liftgate on the back of the SUV while the man in the
jacket places a headlamp on his head and turns it on. The man
in the jacket then disappears from the frame in the direction of
the loading dock and is not seen on the videotape again. About
40 seconds later, however, a beam of light flashes toward Jose
from the direction of the loading dock. Jose then approaches the
light and disappears from the frame. Five seconds later Jose
reenters the frame carrying a box from the loading dock to the
SUV, which he places in the back of the SUV. Jose returns to the
loading dock, and after about six seconds he reappears carrying
another box to the SUV. On his third trip, a beam of light
emanating from the loading dock illuminates Jose from behind.
After six trips within the next two minutes between the
loading dock and the SUV, Jose enters the driver’s side of the
SUV and backs it closer to the loading dock. In the next three
minutes, Jose makes nine more trips between the loading dock
and the SUV, each time carrying one box. At that point, Deputy
Bynum’s patrol car pulls into the parking lot and turns the car’s
spotlight on, and Jose freezes while crouched in the back of the
SUV after positioning the 15th box.
2. Evidence of the value of the dumbbells
Lee was the only witness to testify about the value of the
dumbbells. Based on his review of the surveillance video and his
inspection of the freight trailer, Lee determined the boxes
removed from the trailer contained dumbbells with
manufacturing number W38416389. On January 25 Lee entered
the manufacturing number on Amazon.com. Asked by the
prosecutor, “What value did you determine?” Lee responded,
7
“$500,” or $7,500 for 15 boxes. Lee had also looked up the same
manufacturing number on the Walmart website. Asked at trial,
“Do you recall the value amount that Walmart gave?,” Lee
responded, “Not exactly. Over $300.” 9 With his recollection
refreshed by a document from the Walmart website, Lee testified
the Walmart price was $357 per box, for a total of $5,355 for
15 boxes. Lee also had input the manufacturing number on a
website called “Gym and Fitness.” After he refreshed his
recollection with a document from that website, he testified the
price asked by Gym and Fitness was $498 a box, or $7,470 for 15
boxes. The prosecutor did not offer the website printouts into
evidence.
During cross-examination, Lee testified Comptree did not
sell the dumbbells, but rather, it ships products for other
companies. Lee did not have any bills of sale or invoices relating
to the dumbbells.
9 The defense attorneys objected on hearsay grounds to the
prosecutor’s questions about the retailers’ website prices. At a
sidebar, the defense attorneys argued the website prices were
hearsay because they were offered for the truth of the value of
the items. The prosecutor asserted the prices were not hearsay
because they were offered to show the value assigned by the
retailers, and even if they were hearsay, the testimony about the
prices was admissible as testimony about a “computer-generated
document” similar to the Kelley Blue Book. The trial court
overruled the objections on the ground “fair market value in the
marketplace is certainly relevant based upon what other retailers
are selling the same item for.”
8
B. The Verdicts and Sentencing
On August 23, 2021 the jury found Jose and Orlando guilty
of grand theft (§ 487, subd. (a)).
At the sentencing hearing the same day, the trial court
suspended imposition of sentence and placed Jose and Orlando on
two years of formal probation on the condition they serve
180 days in county jail. The court found Jose and Orlando had no
ability to pay court fees or a crime prevention fine (§ 1202.5). The
court imposed and stayed a $300 restitution fine (§ 1202.4,
subd. (b)) pending proof of an ability to pay, and imposed and
stayed a probation revocation fine in the same amount
(§ 1202.45). The court orally ordered Jose and Orlando to “obey
all rules and regulations of the probation department including
paying the cost of the probation services based on your ability to
pay.” However, the minute order for the hearing did not refer to
payment for probation services, stating only that each defendant
“obey all rules and regulations of the probation department.”
(Capitalization omitted.) The minute order also stated: “All
other mandatory fees are waived based on an inability to pay in
accordance with the case of [People v. Dueñas (2019)
30 Cal.App.5th 1157, 1168].” 10
Jose and Orlando timely appealed.
10 In People v. Dueñas, supra, 30 Cal.App.5th at page 1168,
this court concluded that imposing court assessments and fees
““upon indigent defendants without a determination that they
have the present ability to pay violates due process under both
the United States Constitution and the California Constitution.”
(Accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655,
review granted Mar. 11, 2020, S259755.)
9
DISCUSSION
A. Grand Theft and Standard of Review
“Every person who shall feloniously steal, take, carry, lead,
or drive away the personal property of another . . . is guilty of
theft.” (§ 484, subd. (a).) “Theft is divided into two degrees, the
first of which is termed grand theft; the second, petty theft.”
(§ 486.) “Grand theft is theft committed . . . [¶] . . . [w]hen the
money, labor, real or personal property taken is of a value
exceeding nine hundred fifty dollars ($950) . . . .” (§ 487,
subd. (a).) The elements to prove grand theft are “‘the taking of
personal property [valued at more than $950] from the owner . . .
into the possession of the criminal without the consent of the
owner or under a claim of right, [and] the asportation of the
subject matter [with] the specific intent to deprive the owner of
his property wholly and permanently.’” (People v. Whitmer (2014)
230 Cal.App.4th 906, 922; accord, People v. Walther (1968)
263 Cal.App.2d 310, 316; see People v. Davis (1998) 19 Cal.4th
301, 305 [“The elements of theft by larceny are well settled: the
offense is committed by every person who (1) takes possession (2)
of personal property (3) owned or possessed by another, (4) by
means of trespass and (5) with intent to steal the property, and
(6) carries the property away.”].)
“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, subd. (a); see People v. Romanowski
(2017) 2 Cal.5th 903, 914 (Romanowski) [“courts have long
required section 484’s ‘reasonable and fair market value’ test to
be used for theft crimes that contained a value threshold”].) “The
fair market value of an item is ‘the highest price obtainable in the
10
market place’ as between ‘a willing buyer and a willing seller,
neither of whom is forced to act.’” (People v. Grant (2020)
57 Cal.App.5th 323, 329 (Grant); accord, Romanowski, at p. 915;
People v. Pena (1977) 68 Cal.App.3d 100, 104.) 11 “Fair market
value is ‘not the value of the property to any particular
individual.’” (Grant, at p. 329; accord, People v. Lizarraga (1954)
122 Cal.App.2d 436, 438.)
“Fair market value may be established by opinion or
circumstantial evidence.” (Grant, supra, 57 Cal.App.5th at
p. 329.) “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. (People v. Tijerina
(1969) 1 Cal.3d 41, 45 (Tijerina); accord, Grant, at p. 329.)
“Jurors may also ‘rely on their common knowledge’ in
determining the value of an item.” (Grant, at p. 329; accord,
People v. Ortiz (2012) 208 Cal.App.4th 1354, 1366.)
We review a trial court’s ruling on a hearsay objection for
an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
725 [“an appellate court applies the abuse of discretion standard
of review to any ruling by a trial court on the admissibility of
11 The jury was instructed with a version of CALCRIM
No. 1801, with the following definition of fair market value: “Fair
market value is the price a reasonable buyer and seller would
agree on if the buyer wanted to buy the property and the seller
wanted to sell it, but neither was under an urgent need to buy or
sell.” (See Romanowski, supra, 2 Cal.5th at p. 915 [citing
CALCRIM No. 1801 definition of fair market value given here].
CALCRIM No. 1801 provides as an alternative definition, “Fair
market value is the highest price the property would reasonably
have been sold for in the open market at the time of, and in the
general location of, the theft.” (Italics omitted.)
11
evidence, including one that turns on the hearsay nature of the
evidence in question”]; People v. Yates (2018) 25 Cal.App.5th 474,
484-485 [same]; see People v. Grimes (2016) 1 Cal.5th 698, 711
[trial court’s decision on admissibility under Evidence Code
section 1230 reviewed for abuse of discretion].) However, to the
extent a hearsay ruling turns on a question of law, as it does
here, we review the question de novo. (Grimes, at p. 712
[“Whether a trial court has correctly construed Evidence Code
section 1230 is, however, a question of law that we review de
novo.”]; see People v. Louis (1986) 42 Cal.3d 969, 986 [conclusions
of law are subject to de novo review].)
With respect to Orlando’s challenge to the sufficiency of the
evidence, “we review the entire record in the light most favorable
to the judgment of the trial court. We evaluate whether
substantial evidence, defined as reasonable and credible evidence
of solid value, has been disclosed, permitting the trier of fact to
find guilt beyond a reasonable doubt.” (People v. Vargas (2020)
9 Cal.5th 793, 820; accord, People v. Penunuri (2018) 5 Cal.5th
126, 142 [“‘To assess the evidence’s sufficiency, we review the
whole record to determine whether any rational trier of fact could
have found the essential elements of the crime or special
circumstances beyond a reasonable doubt.’”].) “‘“Conflicts and
even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province
of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.”’”
(Penunuri, at p. 142; accord, People v. Mendez (2019) 7 Cal.5th
680, 703.)
12
“‘“The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.”’” (People
v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera
(2019) 7 Cal.5th 306, 324.) “‘We presume in support of the
judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.’”
(People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v.
Penunuri, supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support’” the jury’s verdict.’”].)
B. Substantial Evidence Supports a Finding the Value of the
Dumbbells Exceeded $950
1. Hearsay and nonhearsay evidence
Hearsay is an out-of-court statement offered for the truth of
its content. (Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442,
447 (Hart); People v. Sanchez (2016) 63 Cal.4th 665, 674; Evid.
Code, § 1200, subd. (a).) Conversely, “[w]hen an out-of-court
statement is offered for any relevant purpose other than to prove
the truth of the matter stated, the statement is not hearsay.”
(People v. Wilson (2021) 11 Cal.5th 259, 305; accord, People v.
Armstrong (2019) 6 Cal.5th 735, 786.)
When considering whether an out-of-court assertion is
nonhearsay, “[t]he first and most basic requirement for applying
the not-for-the-truth limitation . . . is that the out-of-court
statement must be offered for some purpose independent of the
13
truth of the matters it asserts. That means that the statement
must be capable of serving its nonhearsay purpose regardless of
whether the jury believes the matters asserted to be true.”
(People v. Hopson (2017) 3 Cal.5th 424, 432, citing 2 McCormick
on Evidence (7th ed. 2013) The Hearsay Rule, § 249, p. 189, fn. 2
[“if in fact the statement must be true for the inference desired,
then the ostensible nonhearsay use is invalid”]; accord, Hart,
supra, 9 Cal.5th at p. 447; People v. Armstrong, supra, 6 Cal.5th
at p. 786.) As the Supreme Court explained in Hart, “For
example, suppose A hit B after B said, ‘You’re stupid.’ B’s out-of-
court statement asserts that A is stupid. If those words are
offered to prove that A is, indeed, stupid, they constitute hearsay
and would be inadmissible unless they fell under a hearsay
exception. However, those same words might be admissible for a
nonhearsay purpose: to prove that A had a motive to assault B.
The distinction turns not on the words themselves, but what they
are offered to prove.” (Hart, at pp. 447-448; see Armstrong, at
p. 786 [assault victim’s use of racial slur was relevant to show
defendant’s motive].) Because “[o]therwise competent evidence
must also be relevant, . . . the nontruth offered must be relevant.”
(Hart, at p. 448.)
The Supreme Court in Hart acknowledged with respect to
the hearsay analysis, “The concept can prove analytically elusive
when the words themselves also make an assertion.” (9 Cal.5th
at p. 448, citing 1 Witkin, Cal. Evidence (5th ed. 2018) Hearsay,
§ 37, p. 832 [“The distinction between these two uses of the
evidence is not always readily apparent.”].) In Hart, for example,
the court considered whether a construction foreman’s testimony
that an invoice for pipes bearing the name “Keenan Supply” and
a stylized “K” logo was hearsay in a case where the ultimate
14
disputed fact was whether Keenan supplied pipes for the project.
(Id. at p. 449.) The court held the name and logo on the invoice
were nonhearsay because “the link between Keenan and the
pipes does not depend on the word ‘Keenan’ being a true
statement that Keenan supplied the pipes. Instead, the link
relies on several circumstances demonstrated by the evidence,”
including the foreman’s testimony that when the pipes were
delivered, he “was given an invoice bearing Keenan’s name and
logo,” which matched the load delivered, in addition to evidence
the company’s practice was to provide invoices bearing its name
and logo with its pipes. (Id. at pp. 449-450.) The connection
between the pipes and the supplier would have been evident
“even if the company name and logo were not expressive of [the
company’s] identity as the source.” 12 (Id. at p. 449.)
12 The Supreme Court in Hart, supra, 9 Cal.5th at page 449
analogized the Keenan invoices to the documents at issue in
People v. Goodall (1982) 131 Cal.App.3d 129, 143 and People v.
Williams (1992) 3 Cal.App.4th 1545, 1542, in which the Courts of
Appeal held that documents identifying the defendant (including
correspondence, receipts, and licenses) recovered from dwellings
were nonhearsay evidence that the defendants resided at the
dwellings. The Hart court observed, “In Goodall and Williams
the documents were relevant regardless of their truth. It was the
presence of the documents, not the truth of their content, that
linked those defendants to the residences. Even if the documents
bore false aliases, they could still be evidence of the disputed link,
if it could be established that [the defendants] used those false
names.” (Hart, at p. 449.)
15
2. The retailers’ price listings were admissible
circumstantial evidence of the stolen dumbbells’ value
This case presents, as Hart describes it, an “analytically
elusive” hearsay case. (Hart, supra, 9 Cal.5th at p. 448.) The
challenge stems from the fact price listings on a retailer’s website
and price tags in a brick-and-mortar store 13 can serve multiple
evidentiary purposes to prove the ultimate fact: the value of
stolen items. Some of these purposes clearly implicate hearsay.
For example, an out-of-court statement by a Walmart employee
that Walmart was offering to sell adjustable dumbbells for $357
(or a price listing or price tag to that effect) is hearsay if it is
offered for the truth that Walmart was willing to sell the
dumbbells for $357 or that Walmart believed the value of the
dumbbells was $357. 14
13 For simplicity we refer to prices posted on a retailer’s
website as price listings, and brick-and-mortar store price tags as
price tags. We treat price listings and price tags the same in our
hearsay analysis.
14 We recognize, as the concurrence highlights, that Lee in his
testimony referred to the website price listings interchangeably
as “values” and “prices.” For example, when asked whether he
had determined the “value” of the dumbbells from the Amazon
website, Lee testified (after a hearsay objection was sustained)
that the “value” was $500. However, as to the Walmart website,
the prosecutor inquired as to the “price that [Lee] learned” from
the website. Following a sidebar discussion, Lee testified, after
being shown the Walmart website printout to refresh his
memory, that the “amount” on the Walmart price listing was
$357. And with respect to the Gym and Fitness website, Lee was
asked for the “price or value . . . from that website,” and he
responded (again after having his memory refreshed with a
16
However, a price listing or price tag is also evidence of a
retailer’s offer to sell the item for a specified price, for the
purpose of inviting a marketplace transaction. If evidence of the
Walmart price tag in the store or price listing for $357 is
presented to show Walmart was advertising the dumbbells for
sale at $357, but not for the truth of whether Walmart would
consummate a transaction at the advertised price (i.e., whether a
customer could actually purchase the dumbbells from the retailer
at this price), this would be a nonhearsay purpose because it is
“relevant regardless of [its] truth.” (Hart, supra, 9 Cal.5th at
p. 449; accord, People v. Hopson, supra, 3 Cal.5th at p. 432.)
Thus, if admitted for this nonhearsay purpose, it could well be
that a customer could not buy the dumbbells at the advertised
price if, for example, the customer clicked the “buy now” icon on
the retailer website and learned there were no dumbbells
available or was told at the cash register that the salesperson
was unable to ring up the item at the price on the price tag. The
question, then, is whether evidence of the existence of a retailer’s
advertised price (the nonhearsay purpose) is relevant to show the
fair market value, regardless of whether the individual retailer is
willing to sell at that price or believes its price reflects the value
printout from the website) that the “value amount” was $498.
Although the use of the word “value” instead of “price” was
imprecise, it is clear from the testimony that Lee was providing
the prices listed on the retailers’ websites. Moreover, the defense
attorneys did not object to the wording of the questions, nor do
they argue on appeal that use of the word “value” in describing
the price listings rendered the responses hearsay.
17
of the item (the hearsay purposes). (Hart, at pp. 447-448;
Hopson, at p. 432.) We conclude that it is. 15
As discussed, the value of stolen property under
section 487, subdivision (a), means “fair market value,” which
measures “‘the highest price obtainable in the market place’ as
between ‘a willing buyer and a willing seller, neither of whom is
forced to act.’” (Grant, supra, 57 Cal.App.5th at p. 329.) The
existence of an advertisement by a retailer to sell an item at a
stated price supports a reasonable inference a willing seller
would sell the item and a willing buyer would purchase the item
15 Because we hold the price listings were not offered for a
hearsay purpose, we do not reach the People’s contention the
listings fell within the hearsay exception for published
compilations under Evidence Code section 1340. (See Evid. Code,
§ 1340 [“Evidence of a statement, other than an opinion,
contained in a tabulation, list, directory, register, or other
published compilation is not made inadmissible by the hearsay
rule if the compilation is generally used and relied upon as
accurate in the course of a business as defined in Section 1270.”].)
We also do not address whether Lee’s testimony was inadmissible
under Evidence Code section 1523, subdivision (a), as oral
testimony offered to prove the contents of writings (the price
listings) that were available. (See Evid. Code, § 1523, subd. (a)
[“Except as otherwise provided by statute, oral testimony is not
admissible to prove the content of a writing.”].) Jose and Orlando
forfeited this objection by failing to assert it either in the trial
court or on appeal. (People v. Fuiava (2012) 53 Cal.4th 622, 721
[“‘“‘defendant’s failure to make a timely and specific objection’ on
the ground asserted on appeal makes that ground not
cognizable”’”]; People v. Jennings (2010) 50 Cal.4th 616, 654
[failure to make hearsay objection at trial forfeited claim on
appeal].)
18
for the stated price. The question is not whether a specific seller
(here, Walmart, Amazon, or Gym and Fitness) was actually
willing to sell the item for the stated price or whether it valued
the item at that price because, as discussed, the fair market
value is “‘not the value of the property to any particular
individual.’” (Ibid.)
Rather, the advertised prices may be considered by the jury
as circumstantial evidence of the price at which willing sellers
and willing buyers would consummate a transaction in the
marketplace. The jury may believe, for example, that willing
sellers and buyers would agree on a $500 price for the dumbbells
by comparing that price to the prices advertised by multiple
retailers, without knowing whether those retailers would sell the
dumbbells at the advertised prices. By analogy, a car buyer
looking to buy car X may be willing to pay $35,000 for the car
after reviewing advertised prices by multiple car dealers ranging
from $30,000 to $40,000, even if the buyer intended to spend less
on a new car. And a car dealer might be willing to sell car X for
$35,000 in light of the other dealers’ advertised prices even if it
believed the car was worth $40,000.
Likewise, the fact Amazon advertised the dumbbells for
$500 is circumstantial evidence that $500 is a price obtainable in
the marketplace between a willing seller and willing buyer—a
reasonable juror could infer that if customers were not willing to
pay this price, Amazon would have offered a lower price (or not
listed the dumbbells at all). The advertised prices for the
dumbbells in the marketplace are therefore relevant to a
determination of fair market value under Grant, supra,
57 Cal.App.5th at page 320 and People v. Pena, supra,
68 Cal.App.3d at page 103. This result obtains even if the jury
19
does not believe the retailers would complete a sale if a customer
clicked “buy now” or carried a box bearing a price tag to the cash
register. Moreover, although the retailers could have provided
admissible testimony as to their valuations of the dumbbells,
their opinions were not necessary to a determination of fair
market value in the marketplace. 16
In his well-reasoned concurrence, Justice Segal argues
evidence of a price listing, if not admitted for the truth that the
seller is willing to sell the item at the listed price, cannot be used
to prove fair market value because a price listing is not relevant
to a determination of value if the retailer is not willing to sell the
item at that price. (Conc. opn. post, at p. 1.) And, if the evidence
is offered to show the retailer was willing to sell at the advertised
price, under Hart, supra, 9 Cal.5th at page 447, the price listing
or price tag is being offered for a purpose that is not “independent
of the truth of the matter it asserts” (that the retailer was a
willing seller), and thus it is inadmissible hearsay. At first
glance, the reasoning in the concurrence appears to reveal a flaw
in our hearsay analysis: How can a retailer’s advertised price be
relevant if the retailer is not willing to sell at the listed price?
The answer lies in the role of the jury, which is not to determine
what Amazon or Walmart thinks the dumbbells are worth, but
16 It is undisputed that an owner’s testimony is admissible as
evidence of the value of an item. (Schroeder v. Auto Driveaway
Co. (1974) 11 Cal.3d 908, 921 [“The opinion of an owner of
personal property is in itself competent evidence of the value of
that property. . . .”]; People v. Coleman (1963) 222 Cal.App.2d
358, 361 [owner of stolen tools was qualified to testify to value of
property for purposes of proving grand theft].) There was no
evidence here showing who owned the stolen dumbbells.
20
rather, to determine what value the marketplace places on the
dumbbells. As discussed, evidence of the advertised prices is
relevant to a determination of the price in the marketplace
regardless of whether each retailer—or in our earlier analogy,
each car dealer advertising car X at a price between $30,000 and
$40,000—was willing to sell the item or car at the advertised
price.
The Supreme Court recognized the relevance of price tag
evidence to determine the value of stolen items in Tijerina, supra,
1 Cal.3d 41. In that case, the defendant was convicted of grand
theft for stealing a box of clothes from a department store. The
box contained “46 packages of men’s undershorts priced at $5 a
package, 2 sweaters priced at $20 each, and one sweater priced at
$16.99. The box also contained 13 men’s sport shirts and
17 packages of undershorts, the price of which does not appear.”
(Id. at pp. 44-45.) The defendant argued “the retail price of the
property does not establish its ‘reasonable and fair market value’”
and was insufficient to surmount the grand theft threshold (then
$200). (Id. at p. 45.) The Supreme Court disagreed, holding, “In
the absence of proof . . . that the price charged by a retail store
from which merchandise is stolen does not accurately reflect the
value of the merchandise in the retail market, that price is
sufficient to establish the value of the merchandise.” (Ibid.)
More than 50 years later, the Supreme Court continues to
cite Tijerina for the proposition that a retail price is sufficient
evidence of fair market value in cases involving retail theft.
(See Romanowski, supra, 2 Cal.5th at p. 915 [citing Tijerina for
the definition of fair market value in the retail store context but
clarifying as to stolen credit cards that absent a legal retail price,
evidence of the price on the black market could be considered to
21
establish fair market value].) Although Tijerina did not involve a
hearsay question, the Tijerina court’s reliance on the prices on
the price tags attached to the stolen merchandise (for which no
transaction was ever consummated) to establish the value of the
merchandise in the retail market is consistent with our
conclusion that price listings and price tags are relevant evidence
to prove value without regard to whether the store would have
consummated the transaction at that price. (Cf. Grant, supra,
57 Cal.App.5th at p. 329 [where store employee’s testimony
showed an outlet store’s pricing policy was to offer a significant
discount from a “‘comparable at’” price printed on clothing tags
and nothing was sold at “‘full price,’” substantial evidence did not
support a grand theft conviction where the People introduced the
“‘comparable at’” price tags into evidence but did not establish
that the tag value reflected fair market value].) 17
17 The cases cited by Jose to support his argument the three
retail price listings are hearsay evidence are distinguishable. In
Kitchel v. Acree (1962) 216 Cal.App.2d 119, the Court of Appeal
held in the context of a contract dispute between homeowners
and building contractors that the testimony of one of the
homeowners as to a repair estimate he received from a third-
party plastering contractor to repair the substandard installation
of a cornice was inadmissible hearsay. (Id. at pp. 123-125.)
Unlike the price advertised in the retail marketplace at issue
here, the third-party contractor’s estimate for the cost to repair
the homeowners’ property was offered for the truth of the price
the contractor would charge to repair the homeowners’ cornice;
indeed, it could serve no nonhearsay purpose because the
estimate was by its nature unique to the repair and could not
support an inference about the price at which any other
homeowners and contractors would come to agreement on any
22
The Court of Appeal in In re Marriage of LaBass & Munsee
(1997) 56 Cal.App.4th 1331 utilized a similar hearsay framework
in analyzing offers in the marketplace for the purpose of
calculating a spouse’s ability to find employment. There, the
court considered whether “help wanted” advertisements in a
newspaper were hearsay when offered to show the availability of
jobs for purposes of imputing a full-time teacher’s salary to the
wife in a dissolution action in determining whether the husband’s
child support obligation should be reduced. (Id. at pp. 1335-
1336.) The family court had admitted newspaper advertisements
soliciting applications for teaching positions from candidates with
the same qualifications possessed by the wife. (Id. at pp. 1335,
1338.) The Court of Appeal concluded in affirming the reduction
in child support that the family court “properly ruled the ads
were admissible for the nonhearsay purpose of showing that
offers to bargain existed,” not for the hearsay purpose of showing
whether the wife could secure a teaching position on the
advertised terms. (Id. at p. 1338.) Similarly, here, we consider
the advertised prices for dumbbells in the retail market for the
nonhearsay purpose of showing there were offers to sell the
dumbbells in a specified price range.
We recognize that price listing and price tag evidence,
offered as circumstantial evidence of an item’s value in the
marketplace, is less reliable than a retailer’s for-the-truth
testimony as to the price at which the retailer has sold or would
sell an item (or its own valuation of the item). But the question
other plastering project. Garfinkle v. Montgomery (1952)
113 Cal.App.2d 149 is inapposite for the same reason. (See id. at
pp. 158-159 [lessor’s cost-of-repair testimony based on third-party
contractor’s estimate to repair property was hearsay].)
23
before us is a threshold question of admissibility, not the
evidence’s weight or reliability. (See People v. Dalton (2019)
7 Cal.5th 166, 232 [where statement was admitted for a
nonhearsay purpose, it need not have met the reliability
requirements of a hearsay exception because a challenge to the
statement’s reliability “‘at most, goes to the weight of the
evidence, and not its admissibility’”]; People v. Merriman (2014)
60 Cal.4th 1, 72 [same].) Moreover, the People bolstered the
reliability of the evidence by introducing three retail price
listings: Walmart ($357), Amazon.com ($500), and Gym and
Fitness ($498), all of which supported the jury’s implied finding
the fair market value of the stolen dumbbells exceeded the
threshold for grand theft. 18 The defense could have introduced
evidence of lower price listings or that the subject listings were
unreliable because, for example, the retailers regularly
discounted the advertised prices. (See Grant, supra,
57 Cal.App.5th at p. 329.)
We also acknowledge that admission of price listings or
price tags for a nonhearsay purpose could result in jurors
considering the evidence for an impermissible purpose, for
example, that individual retailers are willing to sell the items for
the listed price, thereby ascribing undue weight to the evidence.
However, where evidence has a hearsay and nonhearsay purpose,
the trial court may give a limiting instruction to ensure the jury
considers the evidence for a proper purpose. (See People v. Wang
(2020) 46 Cal.App.5th 1055, 1080, fn. 9 [“When a statement is
18 We note that because 15 boxes of dumbbells were recovered
from the SUV, the People needed to prove each box of dumbbells
had a fair market value of more than $63.33 to exceed the $950
threshold.
24
admitted as nonhearsay circumstantial evidence of the
declarant’s state of mind or effect on the listener, a limiting
instruction is required informing the jury that ‘the declaration is
not received for the truth of the matter stated and can only be
used for the limited purpose for which it is offered.”]; Evid. Code,
§ 355 [“When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct the
jury accordingly”]; see also Hart, supra, 9 Cal.5th at p. 448 [“If
the words are admitted for a nonhearsay purpose the jury is not
allowed to consider the truth of any substantive assertion, and is
often instructed to that effect.”].) Absent a request, however, the
trial court generally is not required to give a limiting instruction.
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229 [absent a
request, “the trial court was under no obligation to give such
limiting instructions”], disapproved on another ground in People
v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Cowan (2010)
50 Cal.4th 401, 479.) Jose and Orlando did not request a limiting
instruction at trial, nor do they argue on appeal that one should
have been given. 19
19 Had counsel for Jose or Orlando requested a limiting
instruction, the trial court could have provided an instruction
that read something to the effect of the following: “You have
heard testimony concerning the advertised price of dumbbells
from three retailers. You may consider those advertised prices in
deciding what price a willing seller and a willing buyer would
agree upon for the dumbbells in an open market, but not as
evidence of the value the retailers placed on the dumbbells or
that the retailer would sell the dumbbells at that price.”
25
The People argue price tag evidence is admissible
nonhearsay because “the price is a binding offer, a verbal act.”
The “verbal act” (or “operative fact”) hearsay rule recognizes that
statements that comprise direct evidence of the element of an
offense or cause of action are not hearsay. (See J&A Mash &
Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19 [lease
extension and sales agreements were not hearsay because
“‘documents containing operative facts, such as the words
forming an agreement, are not hearsay’”]; People v. Dell (1991)
232 Cal.App.3d 248, 259 [“statements of solicitation by a
prostitute, testified to by others, are not obnoxious to the hearsay
rule and are admissible as ‘verbal acts’, i.e., as direct evidence of
the substantive offense”].)
The concurrence finds this argument persuasive,
concluding offers to sell the dumbbells at specified prices were
not hearsay because they were verbal acts “elemental to the
formation of such an agreement” for a sale by a willing seller to a
willing buyer. (Conc. opn. post, at pp. 7-8.) However, whether an
enforceable agreement to sell resulted from the advertised prices
is not relevant to determination of the fair market value of the
dumbbells stored at Comptree. And the cases that have applied
the verbal act doctrine have done so to support a conclusion the
words uttered were not offered to prove the truth of the matter
asserted—the conclusion we reach without applying the doctrine.
As this court explained in People v. Dell, supra, 232 Cal.App.3d at
page 262, where the defendant was charged with pimping and
pandering based on the solicitation by escorts who worked for the
defendant’s company, “the statements of the escorts, testified to
by the officers, also were not offered for the truth of the matter
asserted. The statements were not offered to prove the escorts
26
would actually perform these specific sex acts and at the quoted
price . . . . These statements could be admitted as ‘operative
facts’ or ‘verbal acts’ because they demonstrated an issue in the
case: that the escorts were making verbal offers to enter into
contracts of prostitution, that is, to engage in sexual intercourse
or other lewd acts for money.” We do not see a reason to extend
the verbal act doctrine, which applies to direct evidence of an
element of an offense or cause of action (such as contract
formation), to a case where the evidence is introduced as
circumstantial evidence of an element of an offense. Either way,
the evidence was not introduced for the truth of the matter
asserted. 20
Numerous appellate courts outside of California have held
that price tag evidence is not hearsay when used to establish the
value of stolen retail items. For example, in People v. Giordano
(N.Y.App.Div. 2008) 50 A.D.3d 467, 468 (Giordano) the Appellate
Division of the New York Supreme Court held testimony about
the price tag amounts on stolen jackets was admissible as
nonhearsay circumstantial evidence to establish the jackets’ fair
market value. The court explained, “The tags were not offered as
an assertion of value as distinct from selling price; as defendant
concedes, only selling price itself is at issue here. Instead, the
tags constituted circumstantial evidence of the price a shopper
20 The concurrence suggests our opinion assumes the retail
advertised prices do not constitute offers to sell. (Conc. opn. post,
at pp. 4-5, fn. 2.) The retailer’s advertised price may well be an
enforceable offer to sell, but as discussed, the issue here is not
whether Walmart or Amazon is bound to its advertised price—for
purposes of our hearsay analysis, it does not matter whether the
retailer is actually willing to sell the item.
27
would have been expected to pay for the jackets. Thus, the tags
were essentially verbal acts by the store, stating an offer to sell at
a particular price.” (Ibid.) 21
The Tennessee Court of Criminal Appeals reached a similar
conclusion in Norris v. State (Tenn.Crim.App. 1971) 475 S.W.2d
553 (Norris), in which the defendant appealed his conviction for
shoplifting a television with a value exceeding $100, arguing the
only evidence of the value of the television was the hearsay
testimony of two store security officers who stated the television
had a price tag for $109.95, and it was not on a special sale. The
court affirmed the conviction, holding that “evidence that
merchandise was displayed for regular sale at a marked price
representing its retail price is sufficient circumstantial evidence
of value, where totally uncontradicted, to support a conviction
grounded upon the marked price as its value. That the television
set was displayed for sale over a period of time with a certain
price tag upon it is not hearsay, but fact; and is evidence that the
tag reflected its retail value.” (Id. at pp. 555-556.)
The New Mexico Court of Appeals in City of Albuquerque v.
Martinez (N.M.Ct.App. 1979) 604 P.2d 842, 842 adopted the
holding in Norris in affirming a shoplifting conviction based on
the testimony of a discount chain security manager that a stolen
jacket was valued at $47.97 based on the price tag that the
defendant had removed. The Court of Criminal Appeals of
Alabama in DeBruce v. State (Ala.Crim.App. 1984) 461 So.2d 889,
891-892 (DeBruce) likewise followed the reasoning of Norris,
21 Although the Giordano court referred to the price tags as
“verbal acts,” the court principally relied on the fact the price
tags were evidence of the selling price. (Giordano, supra,50 A.D.3d at p. 468.)
28
holding, consistent with the “weight of authority,” that “a price
tag attached to the stolen property at the time of the theft is
sufficient circumstantial evidence of value, where totally
uncontradicted, to support a conviction grounded upon the
marked price of its value.” 22 The court observed its finding “that
22 The DeBruce court also cited State v. White (Conn. Super.
Ct. 1981) 437 A.2d 145 and Lacy v. State (Miss. 1983) 432 So.2d
1205 in reaching its conclusion. (DeBruce v. State, supra,
461 So.2d at p. 891.) In State v. White, a Connecticut appellate
court held that price tag evidence was not hearsay because of its
inherent reliability. (State v. White, at p. 148 [“We are
unpersuaded by the argument that such tags are technically
excludable as hearsay unless qualified under the business records
exception [citations]; since the inherent unreliability of hearsay is
not present in this type of evidence. Rather, the fact that price
tags generally reflect market value may be judicially noted, since
this fact is both commonly known and capable of ready
demonstration.”].) The Mississippi Supreme Court endorsed this
reasoning in Lacy v. State, at page 1206. Likewise, the Supreme
Court of Virginia in Robinson v. Commonwealth (Va. 1999)
516 S.E.2d 475, 479 relied on State v. White in holding “the
common-sense approach to the problem is to recognize an
exception to the hearsay rule in shoplifting cases permitting the
admission into evidence of price tags regularly affixed to items of
personalty offered for sale or, in substitution, testimony
concerning the amounts shown on such tags when, as in this
case, there is no objection to such testimony on best evidence
grounds.” The court reasoned, “It is common knowledge that
department and other stores regularly affix price tags to items of
merchandise and that the tagged price is what a purchaser must
pay to acquire an item, without the opportunity to negotiate a
reduced price or to question how the tagged price was reached.
[¶] Under these circumstances, ‘the inherent unreliability of
29
the price tags are not inadmissible hearsay squares with the
general rule that inscriptions or labels placed on packages for the
purpose of indicating their contents are competent evidence,
strong or weak according to the attendant circumstances, of their
actual contents.” (Id. at p. 892 [price sticker on stolen cup was
admissible to show value of the stolen property, although store
detective’s opinion based on observation of the price sticker was
not competent evidence].)
And in State v. Pulver (Or.Ct.App. 2004) 95 P.3d 250, 250,
the Oregon Court of Appeals held that evidence of the price of
stolen shoes, in the form of the store security guard’s testimony
as to their price tags and electronic scans of the product bar
codes, was not hearsay. The court held that under Oregon law,
“to prove the market value of stolen wholesale or retail property
in a theft prosecution, the state must establish the value of the
property in trade, not the value placed on property by its owner.”
(Id. at p. 251.) Therefore, “the state [had] to produce evidence of
the price at which the shoes likely would have sold in the
hearsay is not present.’ [Citation.] Therefore, it would be
unreasonable and unnecessary to require that in each case a
merchant must send to court not only a security person but also
other personnel to establish the reliability of the information
shown on a price tag affixed to an item that has been stolen.” (Id.
at pp. 478-479.) Although the California Supreme Court has
recognized that a Court of Appeal has the power to develop new
hearsay exceptions where evidence “possesses an intrinsic
reliability” and for which there is a “substantial need” (In re
Cindy L. (1997) 17 Cal.4th 15, 28), we need not create a hearsay
exception for price tag evidence because we conclude the evidence
is admissible for a nonhearsay purpose when offered as
circumstantial evidence of the fair market value of a stolen item.
30
ordinary course of business at the time and place of the theft.
Admitted for that purpose, the shoes’ prices, as revealed by the
price tags and the scans of the [bar codes], were not out-of-court
assertions of the fact to be proved, but were themselves direct
evidence of the relevant fact.” (Id. at p. 252.)
We have found few states (and Jose and Orlando do not
identify any) in which price tag evidence has been found to be
inadmissible hearsay. In People v. Codding (Colo. 1976) 551 P.2d
192, 193, the Colorado Supreme Court concluded that price tags
for stolen power tools, about which a department store detective
testified, “should have been excluded as hearsay in this case
because they constituted a written record prepared by someone
other than the detective and were offered for the truth of the
matter asserted on the tags, namely, the retail cost of the
merchandise.” However, the holding in Codding was superseded
by statute, which now provides, consistent with California law
under the Supreme Court’s holding in Tijerina, supra, 1 Cal.3d at
page 45, that the price charged by a retail store is sufficient to
establish the stolen item’s value. (See Colo. Rev. Stat. Ann. § 18-
4-414 [“[I]n all cases where theft occurs, evidence of the value of
the thing involved may be established through the sale price of
other similar property and may include, but shall not be limited
to, testimony regarding affixed labels and tags, signs, shelf tags,
and notices tending to indicate the price of the thing involved.”],
italics added.) The Colorado statute goes even further and
clarifies in section 18-4-414, subdivision (2), that “[h]earsay
evidence shall not be excluded in determining the value of the
thing involved.”
In Stephans v. State (Nev. 2011) 262 P.3d 727, 731-732, the
Nevada Supreme Court surveyed many of the foregoing cases and
31
others and concluded that courts have either held price tag
evidence is nonhearsay circumstantial evidence, as in Giordano
and Norris, or they have held such evidence is hearsay but “do[es]
not require much to overcome the hearsay bar,” for example
through the business records exception (e.g., State v. McPhie
(Idaho 1983) 662 P.2d 233, 236), or on the ground they are “self-
authenticating” (e.g., People v. Mikolajewski (Ill.App.Ct. 1995)
649 N.E.2d 499, 504). The court concluded the testimony of a
security officer as to his memory of what the price tags on stolen
bottles of cologne stated did not fall within any recognized
hearsay exception for price tag evidence because the price tags
were not admitted into evidence, and thus, there was no
foundation for the security officer’s stated memory of the
numbers on the price tags. (Stephans, at pp. 732-733 [security
officer’s testimony presented a “textbook case” of hearsay because
security officer wanted “to testify to the value of goods in reliance
on the price tags affixed by a merchant. For this purpose the
price tags are hearsay and a lay witness could not testify to such
an opinion’”].) However, as discussed, we conclude the price tag
evidence here was admissible not as the foundation for a lay
opinion, but as evidence of the retailers’ advertised prices for the
dumbbells. Stephans is of limited utility because of the court’s
focus on the foundation for the security officer’s testimony, an
issue we do not reach because of the lack of an objection on this
basis.
In sum, the weight of out-of-state authority is consistent
with the nonhearsay use of price tag evidence. Although
appellate courts have articulated varying rationales for
admissibility, for over half a century courts throughout the
country have concluded the price at which an item is advertised
32
for sale in the retail marketplace, whether on a price tag or
otherwise, provides admissible evidence of the fair market value
of the item for the purpose of determining whether a theft offense
is a felony or misdemeanor. 23
C. Substantial Evidence Supports Orlando’s Conviction
Orlando contends the evidence showed only that he was
present at the scene on the morning of the theft, not that he
participated in the theft perpetrated by Jose. Substantial
evidence supports Orlando’s conviction.
First, there was substantial evidence Jose and a second
man perpetrated the theft. The surveillance video showed Jose
and a second man entering the Comptree facility in the SUV
around 1:30 on Saturday morning. Lee testified the two men
were not delivery drivers and were not authorized to move cargo.
The second man got out of the SUV first, put on a headlamp, and
exited the frame of the video next to the trailer from which the
dumbbells were taken. Although the second man is not seen
23 Orlando contends, for the first time on appeal, that
admission of the price listings violated his rights under the
confrontation clause. But under Crawford v. Washington (2004)
541 U.S. 36, the confrontation clause bars admission only of
testimonial hearsay. (Id. at pp. 68-69; see id. at p. 59, fn. 9
[confrontation clause “does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted”].) The price listings are neither hearsay nor
testimonial. (See People v. Cage (2007) 40 Cal.4th 965, 984 [a
statement is testimonial if it was “given and taken primarily for
the purpose ascribed to testimony—to establish or prove some
past fact for possible use in a criminal trial”].)
33
again in the video, the jury could reasonably infer he was still
present and aiding Jose because the beam of a headlamp can be
seen illuminating Jose’s path during at least two of his trips
between the loading dock and the SUV. Moreover, there is strong
circumstantial evidence the second man was engaged in moving
the dumbbell boxes out of the trailer and placing them either on
the loading dock or handing them directly to Jose. Deputy
Bynum testified each of the boxes was “very heavy,” and the
loading dock platform was about four feet above the ground level
where Jose was walking back and forth to the SUV. Based on the
short interval—mere seconds—during which Jose was out of the
frame between each of his 15 trips to the SUV, it would have
been impossible for Jose to climb up onto the loading dock,
remove a large, heavy box from the trailer, set the box down on
the loading dock, and climb back down to the ground level to
complete the trip to the SUV. The only reasonable inference is
that the second man perpetrated the theft by bringing the boxes
to Jose. (See People v. Davis, supra, 19 Cal.4th at p. 305 [for the
purpose of proving theft by larceny, “the slightest movement of
the property constitutes a carrying away or asportation.”].)
Second, there was substantial evidence the second man was
Orlando. Deputy Muehlich conducted a search of the Comptree
facility after Jose was apprehended, and 35 minutes later he
found Orlando hiding with his body balanced on the axle of a
truck parked at the other end of the same loading dock. Orlando
had a headlamp in his pocket, and his clothing, including a
hooded jacket, was consistent with clothing worn by the
passenger of the SUV in the surveillance video. Orlando’s wallet
was found between the passenger seat and center console of the
SUV.
34
On appeal, Orlando argues there was an innocent
explanation for his presence at the scene, which he explained to
Deputy Muehlich—that he had borrowed his friend Rick’s car (a
Nissan Versa) to get to the area, but he was sheltering from the
rain waiting for Jose to pick him up, and he fell asleep. But
Orlando was unable to provide any information about Rick to
Deputy Muehlich except that Rick was from Pomona, and Deputy
Muehlich did not find a Nissan Versa in the vicinity. Orlando
also did not know his present location, and his explanation that
he climbed on the axle of the truck to get out of the rain and then
fell asleep was implausible and inconsistent with the evidence
linking him to the SUV. In any event, we view the evidence in
the light most favorable to the judgment, and, as discussed, there
was substantial evidence of Orlando’s involvement, regardless of
whether the jury could have drawn a contrary inference he was
simply waiting under the truck for Jose to pick him up. (People v.
Westerfield, supra, 6 Cal.5th at p. 713; People v. Penunuri, supra,5 Cal.5th at p. 142.)
D. The Trial Court Erred in Ordering Jose and Orlando To
Pay the Cost of Probation Services
Jose and Orlando contend the trial court erred when it
ordered them to “[o]bey all rules and regulations of the Probation
Department including paying the cost of probation services based
on your ability to pay” because probation services fees are not
authorized following the enactment of Assembly Bill 1869. 24 The
24 “Assembly Bill 1869 abrogated the authority to impose and
collect 23 different administrative fees, including . . . the
probation supervision fee . . . . It did so by adding section 1465.9
35
People concede Jose and Orlando were sentenced after the
effective date of Assembly Bill 1869, and therefore, probation fees
were not authorized. However, the People contend the minute
order of the sentencing hearing did not include an order to pay
probation fees, and “the now-repealed probation services fee was
not imposed as a term or condition of probation as it was waived
based on the appellants’ inability to pay.”
Contrary to the People’s contention, the trial court orally
imposed as a condition of probation that Jose and Orlando pay
the costs of probation services, subject to their ability to pay.
Therefore, the court must correct the oral pronouncement of
judgment to reflect that Jose and Orlando are not responsible for
paying the costs of probation. The People are correct that the
minute order omits imposition of the unauthorized probation
services fee, but correction is warranted because “the oral
pronouncement of sentence controls over a subsequently entered
minute order.” (People v. Sanchez (2019) 38 Cal.App.5th 907,
919; accord, People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Moreover, although the court found Jose and Orlando had a
present inability to pay court fees and a crime prevention fine,
stayed the restitution fine pending proof of ability to pay, and in
to the Penal Code . . . . [Citation.] Section 1465.9, subdivision (a)
provides, ‘On and after July 1, 2021, the balance of any court-
imposed costs pursuant to [s]ection 987.4, subdivision (a) of
[s]ection 987.5, [s]ections 987.8, 1203, 1203.1e, 1203.016,
1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as
those sections read on June 30, 2021, shall be unenforceable and
uncollectible and any portion of a judgment imposing those costs
shall be vacated.’” (People v. Greeley (2021) 70 Cal.App.5th 609,
625.) Section 1203.1b formerly authorized imposition of the
probation supervision fee. (Greeley, at p. 625, fn. 3.)
36
its minute order stated that “all other mandatory fees are waived
based on an inability to pay,” none of these orders superseded the
court’s controlling oral order that Jose and Orlando “pay[] the
cost of probation services based on [their] ability to pay . . . .” In
addition, the ability of Jose and Orlando to pay the fees could
change during their terms of probation.
Although we recognize the probation department is no
longer authorized to recover its costs following the enactment of
Assembly Bill 1869, Jose and Orlando will have no efficient
redress if they are improperly charged for probation services in
light of the defective order. (See People v. Greeley (2021)
70 Cal.App.5th 609, 626 [“although the unpaid balance of the
identified fees is no longer enforceable and collectible, [Assembly
Bill 1869] also mandates that any portion of a judgment imposing
those fees be vacated”].)
DISPOSITION
The judgment is affirmed. We direct the trial court to
correct its August 23, 2021 oral pronouncement of judgment to
reflect that Jose and Orlando are not responsible for paying the
costs of probation services.
FEUER, J.
We concur:
PERLUSS, P. J.
37
SEGAL, J., Concurring.
The majority opinion’s treatment of the hearsay issue here
is thorough, scholarly, and well-written. And I agree with its
conclusion the warehouse manager’s testimony concerning online
retail prices for the dumbbells was not hearsay. But I do not
agree with the way the majority reaches that conclusion.
According to the majority, the manager’s testimony about
the prices of the dumbbells he saw on Amazon.com,
Walmart.com, and Gymandfitness.com was not hearsay because
the People did not offer it to prove “the truth of whether [those
retailers] would consummate a transaction at the advertised
price” or believed the advertised price reflected the dumbbells’
value, but to prove the retailers advertised the dumbbells at
those prices. (Maj. opn. ante, at p. 17.) The majority states that
“the existence of a retail advertised price (the nonhearsay
purpose) is relevant to show the fair market value” of the
dumbbells, “regardless of whether the individual retailer is
willing to sell at that price or believes its price reflects the value
of the item (the hearsay purposes).” (Id. at pp. 17-18.) That last
statement doesn’t sound right to me. If an online retailer is not
willing to sell the item at the advertised price or does not believe
the advertised price reflects the item’s value, then the advertised
price does not tend to prove or disprove anything about the fair
market value of the item. (See People v. Wright (2021) 12 Cal.5th
419, 448 [“Evidence is relevant if it has a ‘tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.’”].)
The majority concludes otherwise, suggesting the “answer
lies in the role of the jury.” 1 (Maj. opn. ante, at p. 20.) The
majority reasons a “jury may believe, for example, that a willing
seller and willing buyer would agree on a $500 price for the
dumbbells by comparing that price to the prices advertised by
multiple retailers, without knowing whether the specific retailers
would sell the dumbbells at the advertised prices.” (Id. at p. 19.)
In other words, as I understand it, the majority supposes a jury
may reasonably infer merely from the fact that retailers have
listed prices on the internet that a willing buyer and a willing
seller—having seen the prices, but having no knowledge (and
thus, presumably, no belief) about whether the retailers would
actually sell at those prices—would agree on a price comparable
to the ones listed. I don’t think that’s a reasonable inference.
Suppose, for example, the advertised prices are substantially
lower than what the advertisers are in fact willing to sell for. If
we assume, as we must, our hypothetical willing seller knows
this (see Cheng v. Coastal L.B. Associates, LLC (2021)
69 Cal.App.5th 112, 123 [“‘fair market value’ under California
law is the price at which the property would change hands
between a willing buyer and a willing seller when the former is
not under any compulsion to buy and the latter is not under any
compulsion to sell, and both parties have reasonable knowledge
of the relevant facts”]; Children’s Hospital Central California v.
Blue Cross of California (2014) 226 Cal.App.4th 1260, 1274 [“fair
market value, is the price that ‘“a willing buyer would pay to a
willing seller, neither being under compulsion to buy or sell, and
1 An odd place to look for answers to questions about
hearsay.
2
both having full knowledge of all pertinent facts”’”]), there is no
reason the hypothetical seller would agree to a comparable price.
To clarify: I think the majority may have succeeded
(barely) in identifying a potential nonhearsay purpose for
introducing evidence of the online retailers’ price listings,
namely, to prove those listings’ mere “existence.” I just don’t
believe that purpose—as the majority has so narrowly limited
it—is relevant to determining the dumbbells’ fair market value.
In my view, to be relevant, the evidence of the price listings must
tend to prove what the majority understands to be the “truth”
they assert: the retailers’ willingness to sell the dumbbells at the
stated prices and, ultimately, the dumbbells’ value. That is, the
price listing evidence is only relevant if it serves what the
majority has identified as its hearsay purpose. Under California
law, even when there is a nonhearsay purpose for admitting an
out-of-court statement, the statement is hearsay if the proponent
offers it to prove the truth it asserts. (See Hart v. Keenan
Properties, Inc. (2020) 9 Cal.5th 442, 447 [“‘“The first and most
basic requirement for applying the not-for-the-truth
limitation . . . is that the out-of-court statement must be offered
for some purpose independent of the truth of the matters it
asserts.”’”]; People v. Hopson (2017) 3 Cal.5th 424, 432 [same].)
Why, then, do I agree the evidence of the online retailers’
prices was not hearsay? To review: In looking to the “reasonable
and fair market value” to determine the value of property taken
in a theft offense (Pen. Code, § 484, subd. (a)), courts consider
that 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. Grant
(2020) 57 Cal.App.5th 323, 329; see People v. Romanowski (2017)
3
2 Cal.5th 903, 915 [determining the reasonable and fair market
value of stolen access card information “requires courts to
identify how much [the information] would sell for”].) “When you
have a willing buyer and a willing seller, neither of whom is
forced to act, the price they agree upon is the highest price
obtainable for the article in the open market.” (People v. Pena
(1977) 68 Cal.App.3d 100, 104; accord, People v. Seals (2017)
14 Cal.App.5th 1210, 1216.)
Like the majority, I consider the price listings introduced
here to be “evidence of a retailer’s offer to sell the [dumbbells] for
a specified price, for the purpose of inviting a marketplace
transaction.” (Maj. opn. ante, at p. 17.) But I would go further:
By all appearances, those price listings were offers to sell the
dumbbells at the stated prices. (See Donovan v. RRL Corp.
(2001) 26 Cal.4th 261, 271 (Donovan) [“The determination of
whether a particular communication constitutes an operative
offer, rather than an inoperative step in the preliminary
negotiation of a contract, depends upon all the surrounding
circumstances.”]; id. at p. 272 [advertisements may constitute
offers “where they invite the performance of a specific act without
further communication and leave nothing for negotiation”];
Nguyen v. Barnes & Noble, Inc. (C.D.Cal., June 16, 2015)
2015 WL 12766130, at p. 4 [online retailer’s display of “‘HP
TouchPad Tablet with 16GB Memory’ for ‘$101.95 Online Price’”
was an offer to sell because, being “‘clear, definite, and explicit’ as
to all essential terms—namely, the item to be sold, the price, and
4
the manner of acceptance—it ‘left nothing open for
negotiation’”].) 2
These offers by actual retailers to sell the dumbbells at
stated prices were circumstantial evidence of a hypothetical
agreement—between a willing buyer and a willing seller—that
would establish the highest price obtainable in the marketplace
for the dumbbells. (See Long Beach Memorial Medical Center v.
Kaiser Foundation Health Plan, Inc. (2021) 71 Cal.App.5th 323,
328 [fair market value is “that amount that ‘hypothetical buyers
and sellers’ would pay in a ‘hypothetical transaction’”]; People v.
Seals, supra, 14 Cal.App.5th at p. 1220 [in calculating the value
of property stolen from a commercial establishment,
“[d]etermining the fair market value of an item involves a
hypothetical transaction between an informed buyer and seller”];
see also People v. Grant, supra, 57 Cal.App.5th at p. 329 [fair
market value may be established by circumstantial evidence].)
And that’s where my hearsay analysis would end. For purposes
2 The majority appears to view the price listings as
advertisements, which “are not typically treated as offers, but
merely as invitations to bargain.” (Harris v. Time, Inc. (1987)
191 Cal.App.3d 449, 455; see Donovan, supra, 26 Cal.4th at
p. 271 [“Some courts have stated that an advertisement . . .
generally does not constitute an offer, but rather is presumed to
be an invitation to consider, examine, and negotiate.”].) “There
is, however, a fundamental exception to this rule: an
advertisement can constitute an offer, and form the basis of a
unilateral contract, if it calls for performance of a specific act
without further communication and leaves nothing for further
negotiation.” (Harris, at p. 455; see Donovan, at p. 272.) The
testimony regarding the prices displayed by Amazon.com and the
other retailers here does not suggest they were invitations to
bargain or left anything to negotiate.
5
of proving the existence of an agreement, an offer is not a
statement whose evidentiary value depends on its “truth,” but a
nonhearsay “verbal act” or “operative fact” whose evidentiary
value derives from whether it occurred. (People v. Dell (1991)
232 Cal.App.3d 248, 258-262; see People v. Fields (1998)
61 Cal.App.4th 1063, 1069 [“‘“There is a well-established
exception or departure from the hearsay rule applying to cases in
which the very fact in controversy is whether certain things were
said or done and not as to whether these things were true or
false, and in these cases the words or acts are admissible not as
hearsay, but as original evidence.’””].)
As we explained in People v. Dell, supra, 232 Cal.App.3d
248, where we held testimony of “escorts’ statements concerning
the sex acts they would perform for [a] fee” was not inadmissible
hearsay because the escorts’ statements were “admissible as
‘verbal acts’ or ‘operative facts’” (id. at p. 258): “Words of
solicitation for prostitution are essentially words of offer and
acceptance in the formation of a contract for sex in exchange for
money. When trying to prove the existence of an oral contract
the words the offeror uttered in making the offer clearly are
admissible as nonhearsay to prove an essential element of the
contract.” (Id. at p. 261.) Other cases are in accord. (See, e.g.,
Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 793
[“exchange of words and telegrams by parties negotiating a
contract ‘ . . . were verbal acts establishing a legal relationship,’”
and “‘evidence of this type “. . . is circumstantial, not testimonial;
and it is therefore not obnoxious to the Hearsay Rule, nor needs
for its admission any Exception to that rule”’”]; Jazayeri v. Mao
(2009) 174 Cal.App.4th 301, 316 [“documents containing
operative facts, such as the words forming an agreement, are not
6
hearsay”]; People v. Jimenez (1995) 38 Cal.App.4th 795, 802
[“[a]n operative fact, such as words forming an agreement, is not
hearsay”]; Skelly v. Richman (1970) 10 Cal.App.3d 844, 858 [“oral
and written statements of the negotiating parties were verbal
acts establishing a legal relationship” and therefore not hearsay];
see also Faigin v. Signature Group Holdings, Inc. (2012)
211 Cal.App.4th 726, 749 [employer’s oral assurances of job
security were not hearsay because they were, “in and of
themselves, evidence of the existence of . . . an implied promise”
to terminate only for good cause]; People v. Nelson (1985)
166 Cal.App.3d 1209, 1215 [statement of consent to search a
vehicle was not hearsay because “[i]t is the saying of the words of
consent that is the issue involved, just as the saying of the words
of a contract is nonhearsay and becomes the relevant issue
involved to determine whether there is a contract”].)
I see—and the majority offers—no reason these principles
should not apply equally to evidence introduced to establish the
hypothetical agreement that serves as the basis for determining
an item’s fair market value. As offers to sell the dumbbells at
stated prices, the online retailers’ price listings were verbal acts
(or operative facts) elemental to the formation of such an
7
agreement. 3 Therefore, the testimony concerning those offers
was not hearsay, and the trial court did not err in admitting it. 4
SEGAL, J.
3 Evidently responding to this sentence, the majority asserts:
“However, whether an enforceable agreement to sell resulted
from the listed offers is not relevant to determination of the fair
market value of the dumbbells . . . .” (Maj. opn. ante, at p. 26.)
But my sentence does not refer to an “enforceable agreement”;* it
refers to “such an agreement,” i.e., a hypothetical agreement
between a willing buyer and a willing seller. Which the majority
and I agree is relevant to determining fair market value.
* An enforceable agreement would require acceptance of the
offer to sell, and there is no evidence here of acceptance.
4 I agree with the majority that substantial evidence
supported Orlando’s conviction for theft and that the trial court
erred in ordering Jose and Orlando to pay the cost of probation
services.
8