People v. Hurd CA6 ( 2024 )

Filed 9/3/24 P. v. Hurd CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050635
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 20CR02232)
v.
CHARLES WAYNE HURD,
Defendant and Appellant.
Defendant Charles Wayne Hurd was convicted by jury of two counts of second
degree burglary (Pen. Code, § 459; counts 1 and 3), petty theft (Pen. Code, § 484;
count 2), grand theft (Pen. Code, § 487, subd. (a); count 4), and felony taking or driving a
vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 5). Based on
the issues defendant raises on appeal, we will reverse the conviction on count 4 and
reduce the conviction on count 5.
I. BACKGROUND
The charges against defendant arose from two incidents in September and October
of 2018. As defendant does not challenge his convictions on counts 1 through 3, our
factual summary is limited to the October 2018 incident on which counts 4 and 5 are
based.
A pickup truck with copper wire in its bed was stolen from a Pacific Gas &
Electric (PG&E) facility in Santa Cruz and was found about a mile away from the facility
with its engine running. Its ignition had been “jimmied” or “punched out.” Surveillance
video showed two people entering the facility and leaving with the truck. Defendant was
later identified as one of the people who stole the truck.
On the same day, a PG&E employee inspected the warehouse where copper wire
was stored and found that a significant amount was missing. Another PG&E employee
testified over defense objection that the value of the missing wire was approximately
$11,000. The employee arrived at that amount using her personal knowledge of the
warehouse’s inventory and information from a computer database that contained unit
prices for various commodities. She did not know how the database was maintained or
where the pricing information came from, but she knew that more than $1,000 worth of
copper material was usually stored in the warehouse. The trial court took judicial notice
that “according to the NASDAQ Commodity Tracker … the price per pound of copper
was $2.74” on the day of the incident. Count 4 charged defendant with stealing more
than $950 worth of copper wire.
Count 5 charged defendant with stealing the truck. With respect to that count, the
trial court instructed the jury as follows: “The defendant is charged in Count 5 with
unlawfully taking or driving a vehicle. To prove that the defendant is guilty of this crime,
the People must prove that, one, the defendant took or drove someone else’s vehicle
without the owner’s consent; and, two, when the defendant did so, he intended to deprive
the owner of possession or ownership of the vehicle for any period of time. A taking
requires that the vehicle be moved for any distance, no matter how small.”
The jury found defendant guilty as charged on counts 1, 3, 4, and 5. On count 2,
the jury found defendant not guilty of grand theft but guilty of petty theft as a lesser
included offense. The jury also found true an allegation that the manner in which the
crimes were carried out indicated planning, sophistication, or professionalism. (Cal.
Rules of Court, rule 4.421(a)(8).) The trial court sentenced defendant to a three-year
upper term on count 1 and a consecutive one-year term on count 5. Punishment was
2
stayed on the remaining counts. The court directed that the final six months of the four-
year sentence be served under mandatory supervision.
II. DISCUSSION
Defendant argues his conviction on count 4 must be reversed due to the erroneous
admission of hearsay evidence. He also contends his conviction on count 5 must be
reversed due to both insufficient evidence and instructional error.
A. COUNT 4
Count 4 charged defendant with grand theft, which includes the element that the
value of the stolen property exceeds $950. (Pen. Code, § 487, subd. (a).) The trial court
also instructed the jury as to count 4 on the lesser included offense of petty theft, which
applies to theft of property worth $950 or less. (Pen. Code, § 484.) The property
relevant to count 4 was the copper wire stolen in October 2018.1
Evidence of the missing wire’s value was provided by a PG&E employee who
testified it was worth approximately $11,000. Defense counsel objected to her testimony
on hearsay grounds, and the trial court overruled the objection. On appeal, defendant
argues the evidence of the copper wire’s value was erroneously admitted. The Attorney
General contends the trial court properly exercised its discretion to admit the evidence
under the hearsay exception for a business record under Evidence Code section 1271, and
alternatively that any error was harmless. We review the rulings on the admission of
evidence for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1010–
1011.)
1
The prosecutor also argued to the jury that it could find defendant guilty on
count 4 under the alternative theory that the truck was worth more than $950, and the
court instructed the jury that it was required to unanimously agree as to which act served
as the basis for a guilty verdict. As we will explain post, there was insufficient evidence
that the truck was worth more than $950, and the prosecutor’s alternative argument
therefore does not affect our analysis of count 4.
3
The Attorney General does not dispute that the employee’s testimony was hearsay,
and we agree that this testimony does not fall within the business records exception.
Evidence Code section 1271 provides that “a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to prove
the act, condition, or event if: [¶] (a) The writing was made in the regular course of a
business; [¶] (b) The writing was made at or near the time of the act, condition, or event;
[¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its
preparation; and [¶] (d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.” Here, pricing information from a computer
database was used by the testifying PG&E employee to estimate the value of the copper
wire stolen in October 2018. The employee consulted the database regularly, but she did
not know how the pricing information was determined or how the database was
maintained. She thus could not testify to how or when the pricing information was input
into the database, as would be required for admissibility under Evidence Code
section 1271. “The key to establishing the admissibility of a document made in the
regular course of business is proof that the person who wrote the information or provided
it had knowledge of the facts from personal observation.” (Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 322.) The trial court therefore abused its discretion in allowing the
challenged testimony without the necessary foundation.
The Attorney General asserts any error was harmless because the PG&E employee
also testified from personal knowledge that more than $1,000 worth of copper wire was
usually stored in the warehouse, and the trial court ultimately took judicial notice of the
price of copper on the day of the theft. But neither piece of information cures the error.
The employee’s affirmative response when asked whether more than $1,000 worth of
copper material was stored in the warehouse “pretty much every day” does not establish
the value of the wire stored there on the day in question. Nor does it establish that more
than $950 worth of copper was missing: Another employee testified that “warehouse
4
folks” told him “the warehouse was empty of copper or missing a lot of copper.” When
he inspected the warehouse, he saw that some “bins were empty” but “a lot” of “tin
covered copper that looks like aluminum” was still present. Without evidence
establishing the amount of copper stolen, the judicially noticed fact that the copper’s
value was $2.74 per pound in October 2018 means little. Nor is there evidence that the
testifying employee relied on a similar unit price in estimating the missing wire’s value.
Although the Attorney General asserts that approximately 1,000 pounds of copper
was missing from the facility in October 2018, the testimony establishing that fact
actually pertained to a September incident that served as the basis for counts 1 and 2.
Other testimony suggested it was impossible to determine how much of that copper was
stolen versus how much had simply been used in the course of business. We note that
while the trial court took judicial notice that the price of copper was $2.60 per pound in
September 2018, which would make 1,000 pounds of copper worth $2,600, the testifying
PG&E employee estimated that $4,100 worth of copper wire had been stolen in the
September incident. We also note that despite the employee’s testimony and the notice
taken, the jury acquitted defendant of grand theft on count 2, convicting him of the lesser
included offense of petty theft.
Had the testifying PG&E employee’s estimate of the missing copper’s value been
properly excluded as based on inadmissible hearsay, the jury may have found defendant
guilty of only the lesser petty theft on count 4 as it did on count 2. Because we find the
error prejudicial under the state law standard of People v. Watson (1956) 46 Cal.2d 818,
we do not reach defendant’s argument that it may have risen to the level of federal
constitutional error.
B. COUNT 5
Count 5 charged defendant with violating Vehicle Code section 10851,
subdivision (a), which “separately prohibits the acts of driving a vehicle and taking a
vehicle.” (People v. Garza (2005) 35 Cal.4th 866, 880.) “Except where a conviction is
5
based on posttheft driving (i.e., driving separated from the vehicle’s taking by a
substantial break), a violation of [Vehicle Code] section 10851 must be punished as a
misdemeanor theft offense if the vehicle is worth $950 or less.” (People v. Bullard
(2020) 9 Cal.5th 94, 110 (Bullard); see Pen. Code, § 490.2.) In other words, where a
defendant is charged with vehicle theft as a felony, the prosecution is required to prove as
an element of the offense that the vehicle’s fair market value was more than $950 at the
time of the theft. (People v. Jackson (2018) 26 Cal.App.5th 371, 378; People v. Bussey
(2018) 24 Cal.App.5th 1056, 1061; People v. Gutierrez (2018) 20 Cal.App.5th 847, 855
(Gutierrez); see Pen. Code, § 484, subd. (a) [“the reasonable and fair market value shall
be the test”].) The parties agree the trial court did not instruct the jury on that element
here. Defendant further argues there was insufficient evidence of the truck’s value. The
Attorney General contends the evidence was sufficient to establish value, the
instructional error was harmless, and defendant forfeited any objection to the court’s
instructions. As we will explain, we find the evidence insufficient to support a felony
conviction and will therefore reduce it to a misdemeanor. Given our conclusion, we do
not reach the Attorney General’s arguments regarding forfeiture and harmlessness.
1. The Evidence Was Insufficient to Meet the Felony Threshold
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297,
331.) We presume the “existence of every fact that the trier of fact could reasonably
deduce from the evidence” to support the judgment. (People v. Medina (2009)
46 Cal.4th 913, 919.) To overturn a conviction, “it must clearly appear that upon no
hypothesis whatever is there sufficient substantial evidence to support it.” (People v.
Redmond (1969) 71 Cal.2d 745, 755.) But a “reasonable inference may not be based on
suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or
6
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.)
Mindful of the deferential standard of review, we nonetheless conclude there was
no evidence from which a jury could appropriately determine the truck was worth more
than $950 without engaging in speculation. Photographs and video footage established
the truck was operable, but general appearance and operability do not speak to monetary
value. And the testimony about PG&E’s “very solid vehicle maintenance program” came
from an employee who admittedly “didn’t know anything about the truck” in particular.
The Attorney General suggests jurors could conclude based on common
knowledge that a pickup truck in working condition was worth more than $950, citing
People v. Ortiz (2012) 208 Cal.App.4th 1354. We accept the general proposition that
jurors may “rely on their common knowledge” when determining an object’s value.
(Id. at p. 1366.) But Ortiz “involved jurors’ common knowledge that a two-year-old
BMW generally has substantial value” and the issue “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.” (People v. Grant (2020) 57 Cal.App.5th 323, 332, fn. 5 (Grant); see
Ortiz, at pp. 1365–1366.)
In contrast here, the minimum monetary value of the truck is itself an element of
the charged offense. Yet there was little or no evidence of the truck’s age, miles driven,
or mechanical condition (beyond mere appearance and operability). Under these
circumstances, relying on common knowledge alone does not “provide[] the required
precision.” (Grant, supra, 57 Cal.App.5th at p. 332.) “If the People seek to excuse the
production of evidence by urging the fact is one of common knowledge, the following
test applies. First, ‘is the fact one of common, everyday knowledge in that jurisdiction,
which everyone of average intelligence and knowledge of things about him can be
7
presumed to know; and [second,] is it certain and indisputable?’ ” (People v. Davis
(2013) 57 Cal.4th 353, 360.) Although simple enough to establish through testimony or
other evidence, the fact that a used pickup truck of uncertain age and mileage would be
worth more than $950 on the open market as of October 2018 cannot be presumed
commonly known, certain, or indisputable. Nor do we know whether the jurors
themselves would have unanimously agreed on that fact, given that they were not
instructed on monetary value as an element of the offense. As a result, the felony status
of the conviction under Vehicle Code section 10851 cannot stand.
2. The Proper Remedy Is To Reduce of the Conviction to a Misdemeanor
Were our reversal of the felony conviction on count 5 premised solely on the
conceded instructional error, retrial on the charged felony would be permissible. But we
have also found no substantial evidence of the omitted element. It was clear years before
defendant’s 2022 trial that monetary value is an element of felony unlawful taking (i.e., a
felony violation of Veh. Code, § 10851 based on vehicle theft), as distinct from unlawful
driving (i.e., a violation based on posttheft driving). (See People v. Page (2017)
3 Cal.5th 1175, 1187–1188; Bullard, supra, 9 Cal.5th at p. 110; cf. Gutierrez, supra,20 Cal.App.5th at p. 858.) And as the Attorney General acknowledges, there was no
allegation of post-theft driving in this case. (Cf. Bussey, supra, 24 Cal.App.5th at
p. 1062.) Although retrial on the felony offense is not available to the prosecution,
defendant does not dispute that the remaining elements of unlawful taking were
established. We will therefore reduce the felony conviction to a misdemeanor. (See
People v. Navarro (2007) 40 Cal.4th 668, 671; accord, Grant, supra, 57 Cal.App.5th at
p. 332.)
III. DISPOSITION
The judgment is reversed, the conviction on count 4 is vacated, and the conviction
on count 5 is reduced to a misdemeanor. The matter is remanded to the trial court, where
the prosecution may elect either to retry defendant for grand theft on count 4 or to accept
8
a conviction for petty theft on that count, after which the trial court shall fully resentence
defendant accordingly.
9
____________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Bromberg, J.
H050635
People v. Hurd