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People v. Seals

California Court of Appeals, Second District, Eighth Division

August 30, 2017

THE PEOPLE, Plaintiff and Respondent,
TROY EARL SEALS, Defendant and Appellant.


         APPEAL 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.

          Xavier 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. [*]

         In 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).[1] 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.

         On 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, [2] 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.


         In July 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.

         Flores 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 phone.”

         When 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.

         A jury 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.[3]


         I. The Jury Properly Included Sales Tax in Determining Whether Seals Entered the Property with Intent to Steal an Item with a Value Greater than $950.

         In 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.

         Thus, 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.

         In the 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.)

         A. Establishing Value in Theft Crimes in California

         Under 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].)

         As 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, 45.)

         California 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.

         B. Sales Tax and Fair Market Value

         To evaluate this issue, we first consider the nature of the sales tax in California.

         “The 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 merchandise].)

         “[A]lthough 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.)

         The 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.

         The 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 ...

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