California Court of Appeals, Second District, Eighth Division
FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of Los Angeles County,
No. BA427718 Carol H. Rehm, Jr., Judge. Affirmed as modified.
Katherine E. Hardie, under appointment by the Court of
Appeal, for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Stephanie C. Brenan and Abtin Amir, Deputy Attorneys
General, for Plaintiff and Respondent.
SORTINO, J. [*]
2014, Troy Seals stole a cellphone from a store. A
confrontation with the storeowner ensued, during which Seals
pulled out a knife as he attempted to flee. The People
charged Seals with second degree robbery (Pen. Code, §
211) and second degree commercial burglary (Pen. Code, §
459). At trial, the evidence established the
storeowner typically sold the phone Seals stole for $899,
plus sales tax, which increased the price to almost $1, 000.
The jury found Seals guilty on both counts. The trial court
found true several prior conviction allegations.
appeal, Seals contends substantial evidence does not support
his burglary conviction because the evidence established the
price of the phone was less than $950, and the jury could not
consider sales tax as part of the phone's value. He also
contends substantial evidence does not support his robbery
conviction. Seals further asserts the trial court erred in
denying his Romero motion,  and that his
25-years-to-life sentence for robbery violates the Eighth
Amendment's prohibition against cruel and unusual
punishment. We modify the judgment to correct the presentence
custody credits awarded and otherwise affirm.
AND PROCEDURAL BACKGROUND
2014, Seals walked into Hot Spot Wireless, a cellphone store.
Seals asked Adilmar Hernandez, a store clerk, about a pair of
headphones and whether he could “get a better
price” on them. Hernandez went to the back of the store
to ask the storeowner, German Flores, if he could negotiate
the price of the headphones. While discussing the matter with
Flores, Hernandez heard the shop's front door beep,
indicating someone had entered or exited the store. On a
television feed of the store's security camera, Hernandez
saw Seals leaving with a bag. When Hernandez and Flores
returned to the sales floor they noticed a phone was missing
from the display case.
chased after Seals. When Flores was eight feet away from
Seals, he confronted Seals, saying: “[G]ive me the
fucking phone.” Seals denied having the phone and kept
walking, at a faster pace. Flores continued to follow Seals,
demanding that he return the phone. Eventually, as Flores
closed the gap between the two men to six feet, Seals pulled
out a nine-inch knife. Seals held the knife by his side and
said: “Get away from me. I don't have your
Flores saw the knife he was hesitant and “a little bit
scared”; after he saw the knife he stopped going after
the phone. Flores thought Seals might use the knife. He began
to look for something to use to protect himself. Still, he
continued following Seals, demanding that he return the
phone. Flores testified at trial that he was determined to
get the phone back because he had no insurance to cover the
loss. In an effort to get closer to Seals, Flores threw a
rock at him; Seals responded by throwing rocks at Flores.
Eventually, police arrived and arrested Seals. Flores
retrieved the phone, which was on the ground near where the
men had thrown rocks. The knife was found nearby.
found Seals guilty of second degree robbery and second degree
commercial burglary. The trial court thereafter found true
the prior conviction allegations as to five of Seals's
prior criminal prosecutions. The court sentenced Seals to a
total state prison term of 35 years to life.
Jury Properly Included Sales Tax in Determining Whether Seals
Entered the Property with Intent to Steal an Item with a
Value Greater than $950.
2014, the People charged Seals with one count of commercial
burglary in violation of section 459. By the time of trial in
2016, the electorate had enacted Proposition 47, which added
section 459.5 to the Penal Code, creating a separate offense
of “shoplifting.” Under section 459.5,
“shoplifting is defined as entering a commercial
establishment with intent to commit larceny while that
establishment is open during regular business hours, where
the value of the property that is taken or intended to be
taken does not exceed nine hundred fifty dollars ($950). Any
other entry into a commercial establishment with intent to
commit larceny is burglary.” Shoplifting under this
provision is a misdemeanor. Further, under section 459.5,
subdivision (b), any act of shoplifting must be charged as
such and no person charged with the crime may also be charged
with burglary or theft of the same property.
to establish a violation of section 459 in this case, the
People were required to prove the property Seals stole had a
value exceeding $950. At trial, Flores testified that at the
time of the crime, he usually sold the phone for $899, which,
with tax, was “nine-fifty. Almost 1, 000.” There
was no evidence that, excluding sales tax, Flores ever sold
the phone for more than $950. To convict Seals of burglary,
the jury had to include sales tax in its determination of the
value of the phone.
lower court and on appeal, Seals has argued it was improper
for the jury to include sales tax as part of the value of the
phone. Although Seals frames this issue as one of sufficiency
of the evidence, the threshold question does not involve
disputed facts. Instead, whether sales tax could be included
in the calculation of value is a legal question, which we
review de novo. (People v. Perkins (2016) 244
Cal.App.4th 129, 136; People v. Cuellar (2008) 165
Cal.App.4th 833, 836.)
Establishing Value in Theft Crimes in California
section 484, subdivision (a), which defines theft,
“[i]n determining the value of the property obtained,
for the purposes of this section, the reasonable and fair
market value shall be the test.” “[C]ourts have
long required section 484's ‘reasonable and fair
market value' test to be used for theft crimes that
contained a value threshold....” (People v.
Romanowski (2017) 2 Cal.5th 903, 914 [Proposition 47 did
not change this valuation approach].)
explained in People v. Pena (1977) 68 Cal.App.3d 100
(Pena), “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. Put another way, ‘fair
market value' means the highest price obtainable in the
market place....” (Id. at p. 104.) Further, in
a retail context, absent 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 within the meaning of sections 484 and
487.” (People v. Tijerina (1969) 1 Cal.3d 41,
courts have established these general principles for
determining the value of property in a theft crime, yet no
court has expressly considered whether sales tax may be
included in the valuation.
Sales Tax and Fair Market Value
evaluate this issue, we first consider the nature of the
sales tax in California.
sales tax is imposed on retailers ‘[f]or the privilege
of selling tangible personal property at retail.'
[Citation.]” (Loeffler v. Target Corp. (2014)
58 Cal.4th 1081, 1104 (Loeffler).) It is a
longstanding principle that in this state, “[t]he
retailer is the taxpayer, not the consumer.
‘The tax relationship is between the retailer only and
the state; and is a direct obligation of the former.'
[Citation.]” (Ibid, fn. omitted.) Retailers
pay sales tax on their gross receipts, not on a per item
basis. (Ibid; Rev. & Tax. Code, § 6051;
Roth Drug, Inc. v. Johnson (1936) 13 Cal.App.2d 720,
737 [the sales tax law contemplates imposing a fixed rate of
tax on gross receipts and not on each particular sale of
the sales tax falls on retailers and must be paid by them to
the state, retailers are permitted but not required
to obtain reimbursement for their tax liability from the
consumer at the time of sale. [Citations.] Whether a
reimbursement amount will be added is purely a matter of
contract between the retailer and consumer. [Citations.] It
is presumed that the parties agreed to the addition of sales
tax reimbursement to the sales price if the sales agreement
so states, if the sales tax reimbursement is shown on the
sales check, or if the retailer posts a notice or notifies
consumers by specified methods that reimbursement for sales
tax will be added to the sales price of all items or certain
items. [Citations.]” (Loeffler, supra, 58
Cal.4th at pp. 1108-1109; Livingston Rock & Gravel
Co. v. De Salvo (1955) 136 Cal.App.2d 156, 160-164.)
People primarily rely on one civil case to support the
argument that sales tax may be included in a fair market
value determination. In Xerox Corp. v. County of
Orange (1977) 66 Cal.App.3d 746 (Xerox), the
parties disputed whether sales tax could be considered in the
valuation of property subject to a personal property tax.
County assessors included sales tax in the calculation of the
fair market value of office copying machines and related
equipment the plaintiff, Xerox, leased to its customers.
(Id. at pp. 750-751.) To determine the tax owed on
the copiers and equipment, county assessors used the list
price for new equipment and added sales tax, and, in some
cases, freight charges, to arrive at the “full cash
value” of the property. (Id. at pp. 751-752.)
Xerox argued the inclusion of sales tax and freight charges
was improper; the court disagreed.
Xerox court began its analysis by noting the legal
standard of full cash value for assessment under the
California Tax Code is “fair market value.” In
turn, “[f]air market value contemplates a hypothetical
transaction between an informed seller, being under no
compulsion to sell, and an informed buyer, being under no
compulsion to buy.” (Xerox, supra, 66
Cal.App.3d at pp. 752-753.) Xerox contended sales tax was not
part of the purchase price the parties would agree upon in a