• Proving Value for the Corpus Element of Grand Theft 

The reasonable and fair market value is the test to determine the value of property in theft offenses. 

     At 1:39 a.m., a Los Angeles Sheriff’s Department deputy was on patrol in an industrial area in the City of Industry. She noticed the front gate to the Comptree Warehouse complex was open, not a usual situation for this hour of the morning. She drove inside and noticed an SUV with its interior light on that had backed up to a loading dock next to a 45-foot freight trailer. The cargo doors to the freight trailer were open. Stacked on the loading dock were a number of cardboard boxes. 

     A man (eventually a co-defendant) was standing on the loading dock next to the open trailer. An area search located another man (the defendant) under a semi-trailer atop a 6-inch axle. One told a deputy that while he was waiting for a friend, it started to rain, so he sought shelter and feel asleep. Both subjects, brothers, were arrested.  

     Fifteen boxes of dumbbells weighing 55 pounds each had been removed from the trailer and were either stacked on the loading dock or had been placed in the SUV. Similar boxes remained stacked inside the freight trailer. 

     During a Los Angeles County Superior Court jury trial, the district attorney offered testimony of the warehouse manager, who said he checked three online resources to determine the value of the property in question. The retail price for each set of Dial Tech adjustable dumbbells on Amazon was $500 each or $7,500 total, $357 each or $5,355 at Walmart, and at the Gym and Fitness site, $498 each or $7,470 total.  

     The defendant was convicted of one count of grand theft (487(a) P.C.) and sentenced to 180 days in jail and 2 years of supervised probation. 

     He appealed his conviction on grounds the warehouse manager’s testimony on the internet values were inadmissible out-of-court statements offered for proof of the matter asserted (Hearsay Rule, 1200 E.C.). He further contended there was insufficient evidence that he participated in the actual taking of the property simply because he was found on the premises. 

     The Second District Court of Appeals upheld the defendant’s conviction. 

     The court concluded that evidence of the retail value for a stolen item, whether from an online resource or from a brick-and-mortar store, is acceptable non-hearsay evidence for the purpose of proving what price a retailer is advertising in the marketplace: “In determining the value of property obtained for the purposes of theft offenses, the reasonable and fair market value shall be the test (484(a) P.C.; Peo. v. Romanowski (2017) 2 Cal. 5th 503), Cal Crim. 1801).  

     Fair market value of an item “is the highest price obtainable in the marketplace between a willing buyer and a willing seller” (Peo. v. Grant (2020) 57 Cal. App. 5th 323). “Fair market value may be established by opinion or circumstantial evidence (Grant, supra). Therefore, three online prices were admissible as circumstantial evidence of the fair market value of the dumbbells, the court ruled, also saying the “defendant is free to offer evidence of lower prices from other retailers.” 

     Although the co-defendant was the only person caught “red-handed” on the loading dock, the court ruled there was sufficient evidence to prove the defendant aided and abetted the crime. This evidence included surveillance video showing the SUV backing up to the loading dock and two persons exiting. One person was wearing a hooded sweatshirt and put on an illuminated headlamp. Due to camera angle, this second person is not seen again, but the video clearly implies there is someone inside the van using illumination who is transferring boxes to the co-defendant.  

     Defendant’s concealment on the premises created an inference of consciousness of guilt, the court ruled. When arrested, the defendant was wearing a hooded sweatshirt as seen in the surveillance video, and a headlamp was found in his pocket. Also, the defendant’s wallet with identification was found between the console and passenger seat of the SUV. 

     From this circumstantial evidence, the jury could reasonably infer (a deduction of fact that may logically and reasonably drawn from another fact or group of facts, found or otherwise established in the action – 600 E.C.) that the defendant was guilty of participating in the crime.

     For the purposes of arrest, the Opinion Evidence Rule (800 E.C.) allows an officer/deputy to make a reasonable lay opinion on fair market value. The property value taken exceeds $950 for grand theft (or damage exceeds $400 FMV for vandalism.) There would be probable cause to believe a felony has been committed, regardless of a determination later whether a felony actually has been committed (836(a)(3) P.C.).  

     In your follow-up investigation, you will need to gather documentary evidence of value or testimony, as in this case, from a person who has researched or evaluated the evidence. This may also include expert opinion on any depreciated or appreciated value of property.  

    This decision creates California precedent for online research in establishing value. You do not necessarily need to have a price tag on the property.  

    Retail sales tax can be added to the value of the property taken (Peo. v Seals, 2DCA #B271109 - 8/30/2017). 

Stay Safe, 

RH