Opinion
F073951
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY AVON DABBS, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF162456A, BF162419A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and, Meehan, J.
-ooOoo-
On December 24, 2015, defendant Anthony Avon Dabbs was charged with one count of felony grand theft in violation of Penal Code section 487, subdivision (a). It was further alleged defendant had one prior felony conviction and has served two prior prison sentences.
All statutory references are to the Penal Code.
On May 20, 2016, following a jury trial, defendant was found guilty of felony grand theft. Defendant was sentenced to six years for the theft, and one year four months for an unrelated case, totaling seven years four months. Defendant filed a timely appeal, arguing there is insufficient evidence to support the jury finding the stolen merchandise had a fair market value of more than $950.
We disagree, and find trial testimony that the two stolen iPhones were valued at $699 and $999 constitutes substantial evidence supporting the jury's verdict.
FACTS
On November 18, 2015, around 3:30 p.m., Cara Frankhouser, an executive team leader of asset protection at a Target in Kern County, was observing video surveillance cameras overlooking the electronics department. Frankhouser observed defendant approach an iPhone display, which contained three fully functioning iPhones. The display contained two regular iPhone 6 models, and one iPhone 6 Plus model, attached to a bracket on the display with a metal cord. These iPhones were the most recent models, as the new model had not yet come out.
Frankhouser observed defendant grab one of the regular iPhone 6 models, detach the phone from the display by cutting the metal cord, and place the phone in the pouch pocket of his sweater. Defendant then approached the iPhone 6 Plus display, and attempted to cut the phone's cord as well. He was unable to cut the cord, and began yanking the cord until it broke. He then placed that phone as well into his pouch pocket.
Frankhouser further testified she was knowledgeable as to the dollar amount merchandise was worth because it is a part of her job duties. She was also particularly familiar with the value of Apple products because she counted them daily. Frankhouser testified that at the time, the regular iPhone 6 retailed for $699, and the iPhone 6 Plus retailed for $999. These models were at one point purchased by Target and could be sold to customers. If sold, Frankhouser testified they would be sold at full price. Neither iPhone was recovered.
DISCUSSION
Whenever the evidentiary support for a conviction is challenged on appeal, this court reviews the whole record in the light most favorable to the judgment below, and determines whether the record discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.) This court presumes in support of the judgment, the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "Given this court's limited role on appeal, [the] defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for operating a chop shop. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Section 487, subdivision (a) defines grand theft as theft "When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)." " 'The value to be placed upon stolen articles for the purpose of establishing a felony charge is the fair market value of the property and not the value of the property to any particular individual.' " (People v. Lizarraga (1954) 122 Cal.App.2d 436, 438.) Further, "in the absence of contrary evidence, the price charged by a retail store is sufficient to establish the value of the merchandise within the meaning of section 487." (People v. Brown (1982) 138 Cal.App.3d 832, 835.) Finally, when multiple items are stolen in one "taking[]," their value is aggregated to determine whether it exceeds the threshold for grand theft. (People v. Gray (1976) 65 Cal.App.3d 220, 226.)
Defendant argues the only evidence presented at trial is that the value of a new iPhone 6 is $699, and a new iPhone 6 Plus is $999. But no evidence was presented as to the condition of the stolen phones—that these phones were floor models that were subject to handling by customers. Therefore, defendant concludes, these phones could not have the same value as brand new iPhones.
Defendant relies on a number of out-of-state authorities for the proposition that electronic devices depreciate at an accelerated rate, and, therefore, the market price of a used electronic device is not evidence of its actual value.
In Champagne v. State (2011) 199 Md.App. 671 , the court concluded evidence that the owner paid $1,600 or $1,800 for a Dell laptop computer three years before it was stolen was insufficient to establish the laptop was worth $500 at the time of the theft. In State v. Gartner (2002) 263 Neb. 153 , the court concluded there was insufficient evidence to support the jury's finding that a fax machine purchased for $525 was still worth $525 when it was stolen about seven months later. In State v. Lyman (Utah Ct.App. 1998) 966 P.2d 278, the court found the purchase price of $1,257.73 for surveillance equipment, including a VCR and cameras, purchased upwards of eight years prior was insufficient evidence to support a finding that the equipment was worth at least $1,000 at the time of the theft.
These cases are distinguishable from the present case. The stolen phones in this case did not depreciate for eight, or three years—they are described as being the latest available models. Testimony further showed these floor models, although handled by customers, were resold by Target at full price. Likewise, unlike a fax machine or a VCR, it is not unreasonable to infer that the latest model iPhones would retain at least 56 percent of their value even after being handled by customers.
For the phones, sold for $699 and $999, to depreciate below $950, they would need to lose around 44 percent of their value.
Defendant further relies on two Florida cases, Smith v. State (Fla.Dist.Ct.App. 2007) 955 So.2d 1227 and Lucky v. State (Fla.Dist.Ct.App. 2010) 25 So.3d 691. Florida, however, appears to apply a bright line rule that the purchase price of consumer electronics, alone, is insufficient to establish the value of the goods at a later time. We decline to adopt such a rule.
In Florida courts, " '[v]alue may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.' " (Smith v. State, supra, 955 So.2d at p. 1228.) This conjunctive test shows fair market value or original market cost alone is not enough to establish value at a later date. --------
Finally, defendant relies on two California cases. In People v. Robertson (1931) 117 Cal.App.1, the appellate court found the statement of the complaining witness as to the market value of chickens, taken in breach of a sale contract, was not sufficient to fix the value of the chickens. (Id. at p. 5.)
In People v. Licalsi (1929) 99 Cal.App. 321, the defendant was convicted of stealing a diamond ring. The evidence showed the ring was set in platinum and held a 1.35 carat diamond, but the only evidence of the cut and character of the diamond was the opinion of a witness who had never seen the ring. The court found the witness's testimony was insufficient to establish the value of the ring as being more than $500. (Id. at p. 322.)
In this case, testimony by an employee who regularly worked with the phones showed the iPhone 6 Plus retailed for $999 and the iPhone 6 retailed for $699, and both were the newest available models of the iPhone. Even though the phones were floor models, testimony showed they could be sold to customers, and would have been sold at full price. For the two phones to fall below the $950 threshold, they would need to have depreciated by $748. Based on testimony about the phones' retail price, that even floor models are sold at full price, and that these phones were the latest models of the iPhone, a reasonable trier of fact can find, beyond a reasonable doubt, that the iPhone 6 and iPhone 6 Plus retained a value of more than $950.
DISPOSITION
The judgment is affirmed.