Opinion
Super. Ct. No. 05F02589
NOT TO BE PUBLISHED
SIMS , Acting P.J.
A jury convicted defendant John Joseph Silva of grand theft (Pen. Code, § 487, subd. (a); undesignated section references are to the Penal Code). In exchange for defendant’s waiver of his jury trial right on the strike priors (§§ 667, subds. (b)-(i), 1170.12), one strike prior was dismissed on the prosecutor’s motion. The court found the other strike prior to be true.
Sentenced to state prison, defendant appeals, contending (1) the trial court erroneously ruled with respect to certain evidence and without such, the evidence supports petty theft, not grand theft, or in the alternative, counsel rendered ineffective assistance in failing to challenge the valuation evidence, (2) the trial court abused its discretion and violated defendant’s constitutional right to present a defense in excluding certain evidence, (3) the trial court failed to instruct sua sponte in the language of CALJIC No. 14.27 (grand and petty theft - owner’s opinion of value), or in the alternative, counsel rendered ineffective assistance in failing to request it, (4) the trial court erroneously denied his motion for a new trial and (5) the minute order and abstract of judgment require correction to reflect the oral pronouncement of judgment. We agree the minute order and abstract of judgment require correction. We reject defendant’s remaining contentions and will affirm.
FACTS
About 10:30 a.m. on March 22, 2005, Sacramento County Sheriff’s Detective David Clegg chained and locked a generator into the bed of a pickup truck. The generator was being used as bait in an investigation of construction site thefts of equipment. The yellow Wacker brand commercial generator was worth $1,500 and weighed about 150 pounds. Detective Clegg recorded the serial number, photographed the generator, and applied a clue spray, visible only using ultraviolet light, to the handles and front of the generator. An electronic tracking system which was installed on the generator activated upon substantial movement of the generator. Detective Clegg parked the truck with the generator on Garfield Avenue within a short distance from two construction sites.
At 9:45 p.m. on March 23, 2005, Deputy Sheriff Pamela Linke, other units and a helicopter were directed to Garfield and El Camino when the generator’s tracking system activated. Two miles from the bait site, another deputy stopped a four-door car with three occupants. Lonnie Bueno sat in the driver’s seat, Walter Lee sat in the front passenger seat and defendant sat in the rear seat behind the driver. Officers found the generator partially covered with a sweatshirt next to defendant and taking up more than half of the back seat. In the trunk, officers found bolt cutters. When interviewed, defendant claimed he had just been picked up by Bueno and had not seen or touched the generator. Officers found clue spray on the palms and inside fingers on both hands of both defendant and Lee. Officers found no clue spray on Bueno.
Additional facts relevant to defendant’s contentions will be recounted in our discussion of the same.
DISCUSSION
I
Defendant contends that the evidence supports petty theft, not grand theft. He argues the trial court erroneously denied his motion to strike Detective Clegg’s hearsay testimony and without such, the evidence was insufficient to support the jury’s conclusion that the fair market value of the bait generator exceeded $400. In the alternative, defendant asserts that counsel rendered ineffective assistance in failing to make a timely and specific objection to Detective Clegg’s testimony concerning the value of the generator. We disagree.
Background
Detective Clegg obtained the bait generator in December 2004 from the sheriff’s property warehouse which stores and maintains evidence. The generator had been “cleared” for release, meaning it was no longer needed as evidence or as found property. He opined that although the bait generator was not in a box, it was “basically in new condition,” “did not appear to be used or abused in any way” and “started right up.” At the time of trial, Detective Clegg noted that the generator had not been damaged and had only a few scratches and dirt since December 2004.
Detective Clegg testified without objection that he “called a couple different companies [and] personally went to the Roseville Home Depot center” which sells the same brand and model of the bait generator. The Home Depot generator sold for $1,500. In investigating how much or whether the generator could be sold on the black market, to pawn shops or to people on the street, Detective Clegg checked the Internet including eBay and found generators that sold for a wide range of prices but he could not determine the condition or model numbers.
On cross-examination, defense counsel asked about the officer’s testimony at the preliminary hearing when he valued the bait generator at $1,600. Detective Clegg explained that “$1600 was from one source and the $1500 was from a second source, so that’s where you’re getting the two amounts. $1500 was from the Home Depot store.” The following discourse ensued:
“Q. [Defense counsel]: And that was for a 3700 watt generator; is that right?
“A. That was for the same brand and model number.
“Q. They don’t make this particular brand or model number anymore; is that correct? They don’t sell that at Home Depot anymore; is that correct?
“A. Yes, they do.
“Q. If there’s more--and this is a 3700 watt; is that right?
“A. Yes.
“Q. And so a 4000 watt generator, for example, would be more expensive; is that right?
“A. Not necessarily.
“Q. Are you aware that Home Depot has a 4,000 watt generator for $779?
“A. Well, there are several types of generators. There’s several brands of generators, just like cars; you can buy a car for $200 and you can b[u]y a car for $20,000. I went to Home Depot and priced the same exact model and same exact make of generator and came to the value of $1,500. I did not do apples to oranges. It was apples to apples.
“Q. And that was a few months ago?
“A. Yes.”
After the prosecution rested its case, defense counsel moved to strike Detective Clegg’s testimony on the value of the generator. Defense counsel argued that Detective Clegg’s testimony was hearsay, whether the officer observed the price tag or asked someone at Home Depot for the price. The prosecutor responded that it was not hearsay and that if the officer planned to purchase the generator at Home Depot, he would find out the same way. The trial court stated that defense counsel’s motion was untimely. Defense counsel argued that a motion to strike could be made at any time up to verdict. The court determined that Detective Clegg’s testimony about the value was admissible since it was an observation that he made.
The trial court instructed the jury on the distinction between grand and petty theft (CALJIC Nos. 14.20, 14.21) and on the valuation of property (CALJIC No. 14.26). Both counsel presented arguments on the value of the property taken.
After the verdict, defendant moved for a new trial, arguing, inter alia, that there was insufficient evidence of the current value of the used generator. The trial court found sufficient evidence of value for grand theft and sufficient evidence to support the jury’s verdict.
Analysis
Defendant contends the motion to strike was timely made or, in the alternative, counsel rendered ineffective assistance in failing to timely and specifically object to Detective Clegg’s testimony as to the value of the bait generator.
The trial court initially found that defense counsel had failed to object in a timely manner but subsequently ruled on the merits. We will thus review whether the trial court erred in denying defendant’s motion to strike. (People v. Abbot (1956) 47 Cal.2d 362, 372-373.)
In the trial court, defense counsel argued that Detective Clegg’s testimony was hearsay, whether the officer observed the price tag or asked someone at Home Depot for the price. Defendant renews his argument on appeal that Detective Clegg’s testimony was hearsay and should have been stricken, leaving the jury with no basis to determine that the fair market value exceeded $400 and requiring reduction of his conviction to a misdemeanor. Defendant raises additional arguments on appeal that defense counsel did not make in moving to strike Detective Clegg’s testimony on value. Citing Evidence Code section 813, defendant now argues that Clegg did not qualify as an expert and there was no evidence that the sheriff’s department owned the generator because there was no evidence the sheriff’s department followed proper procedures in disposing of unclaimed stolen property or of lost property. Defendant also claims there is no evidence of the age of the generator, the length of time the police held the generator, the depreciation of the generator or the market for the sale of used generators.
Evidence Code section 813 provides:
To the extent defendant renews his argument made below, we find the trial court properly ruled. To the extent defendant raises new arguments not made below, we will treat them as raised in support of his claim of ineffective assistance of counsel and reject them.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defendant has failed to demonstrate that counsel’s performance was deficient in failing to object to the foundation for Detective Clegg’s opinion.
An owner of property is qualified to opine as to value of property he or she owns. (Evid. Code, § 813; People v. More (1935) 10 Cal.App.2d 144, 145.) “The weight to be given to the owner’s testimony as to value is for the trier of the fact [citation].” (People v. Henderson (1965) 238 Cal.App.2d 566, 567.)
Detective Clegg did not testify as an expert witness but instead as the “owner.” Detective Clegg’s opinion had sufficient foundation. (Evid. Code, § 702.) Defendant has not shown that the bait generator was not properly released, that the sheriff’s department did not legally own or was not entitled to possession of the bait generator, or that Detective Clegg had not been designated or had no personal knowledge of the bait generator in order to testify about the same. An inference can be drawn from the evidence that the Sacramento County Sheriff’s Department owned or legally possessed the bait generator. While neither the prosecutor nor defense counsel asked Detective Clegg who owned the bait generator, Detective Clegg testified that he obtained the bait generator from the sheriff’s property warehouse after it had been “cleared” for release, meaning it was no longer needed as evidence or as found property. Detective Clegg tested it, had the generator equipped with an electronic transmitter, photographed it, recorded the serial number, started it up, sprayed it with clue spray, and locked it with a chain to the bed of the truck. From this evidence, the jury could reasonably infer that the Sacramento County Sheriff’s Department “owned” or was entitled to possession of the bait generator and that Detective Clegg had the knowledge to testify about it. (Evid. Code, § 813, subd. (a)(3).)
A person commits grand theft when he or she steals personal property valued at more than $400. (§ 487, subd. (a).) The test of value is the reasonable and fair market value. (§ 484, subd. (a).) Case law more specifically provides that “fair market value” means the highest price agreed upon by a willing buyer and willing seller at the time and place of the theft. (See People v. Pena (1977) 68 Cal.App.3d 100, 103-104; CALJIC No. 14.26.)
Detective Clegg investigated how much or whether the generator could be sold on the black market, to pawn shops or to people on the street by checking the Internet including eBay. He found generators that sold for a wide range of prices but he could not determine the condition or model numbers of the online generators. Although the bait generator was not in a box, Detective Clegg testified that it was “basically in new condition,” “did not appear to be used or abused in any way” and “started right up.” He learned that the same make and model of generator sold for $1,500 at Home Depot. On cross-examination, Detective Clegg testified that he found the same make and model generator sold for $1,600 at another company.
Detective Clegg fixed the value of the bait generator as $1,500 based on its retail cost and its current mechanical condition (basically new and started right up). (See, e.g., People v. Haney (1932) 126 Cal.App. 473, 475-476 [owner testified as to value based on cost and use]; People v. Coleman (1963) 222 Cal.App.2d 358, 361 [same].) Detective Clegg fixed a value at over three times more than the minimum of $400 required for grand theft. Defendant presented no evidence to dispute Detective Clegg’s valuation or that the retail price does not reflect the fair market value of the generator. Thus, the trial court properly denied defendant’s motion to strike Detective Clegg’s testimony as to value and the jury understandably concluded that the offense was grand, rather than petty, theft.
Defendant challenges only the element of value; he does not otherwise challenge the sufficiency of the evidence to support his conviction. In ruling on a motion for new trial based on a claim of insufficient evidence (§ 1181), the trial court independently weighs the evidence and decides whether “‘there is sufficient credible evidence to support the verdict.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524.) On appeal, we review the trial court’s ruling for abuse of discretion. (Ibid.) The trial court did not abuse its discretion in concluding sufficient evidence supports defendant’s conviction for grand theft.
II
Defendant next contends that the trial court abused its discretion and violated defendant’s constitutional right to present a defense in excluding the following evidence: defendant’s good financial condition to demonstrate his lack of motive to steal; Bueno’s possession of drugs in the car to bolster her testimony; and Bueno and Lee’s prior acts of theft to support their drug habits to demonstrate their motive to steal. We reject these claims.
DEFENDANT’S GOOD FINANCIAL CONDITION
Background
Prior to trial, defendant moved in limine to introduce evidence of his lack of motive to steal, that is, the testimony of his spouse that they were not facing financial difficulties. The prosecutor responded that such evidence would allow her to introduce evidence of defendant’s prior theft-related offenses and character related to motive. In a detailed tentative ruling which the court later adopted as the ruling on defendant’s motion, the court concluded that evidence of defendant’s financial condition was not relevant and would result in an undue consumption of time. To refute his claim of lack of motive, the court found that the prosecution would be allowed to introduce evidence of defendant’s prior acts and character and to cross-examine defendant’s spouse on her knowledge of defendant’s prior bad acts.
The written ruling provided:
Subsequently, defendant orally argued that the evidence of defendant’s lack of motive was relevant and that it did not “open[] the door” for character evidence. Defendant claimed he had made an offer of proof that his finances were fine when the offense occurred. The prosecutor noted that defendant had been arrested for receiving stolen property during the same time frame as “it appears from [defendant’s spouse’s] statement.” The prosecutor further stated, “Other than that without a 402 hearing, I wouldn’t be able to know what exactly the finances were of the defendant and I believe I would have a right to cross-examine [defendant’s spouse] on that.” The court adopted its tentative ruling as the ruling on defendant’s motion in limine but noted that “if something develops during the course of the trial that you think changes the analysis that I did in my tentative ruling, you can raise it at that time.”
BOLSTERING BUENO’S CREDIBILITY/BUENO’S AND LEE’S PRIOR ACTS
Background
Prior to opening statements, the prosecutor noted that during voir dire, defense counsel had questioned jurors about drug usage. The prosecutor stated that she would object on relevancy grounds to defense counsel eliciting any evidence about drugs found under the front passenger seat in the car. Defense counsel argued that drugs were found in the car, some Vicodin attributable to Lee and some heroin attributable to Bueno but none attributable to defendant. Defense counsel claimed that Lee and Bueno alone had a motive to steal the generator, to support their drug habits, but defendant did not.
There was no dispute that Bueno and Lee committed the theft. Each had entered a plea.
The prosecutor claimed that the heroin in a key chain attributable to Bueno “wasn’t discovered by the law enforcement,” “was too tenuous,” and Bueno was “not held to answer on those charges.” The prosecutor explained that the tow company had called law enforcement to report that there was heroin inside the key chain. Defense counsel noted that Bueno had been “charged with it and it was her key chain, and the only reason there wasn’t enough evidence at the prelim[inary hearing] is because the prosecution was trying to get that fact in through double hearsay. And that’s only because the police didn’t have the opportunity to talk to the person at the tow yard who recovered the key chain . . . .”
The prosecutor represented that she would not be introducing the drugs into evidence in defendant’s trial. The prosecutor claimed that defense counsel’s intent on eliciting testimony that Lee and Bueno had a motive to steal was to show that defendant had a lack of motive. In that event, the prosecutor argued that she was entitled to ask Bueno about defendant’s drug habits, his prior theft-related offenses and his motive for the same if not for drugs. The prosecutor stated that some drugs were found under the passenger seat and could have belonged to any of them, including defendant. The prosecutor suggested Bueno’s motive was not her drug habit alone since she had “a theft habit as well.”
Defense counsel wanted the jury to believe Bueno’s testimony that defendant was not involved, that Lee was Bueno’s accomplice and that the drugs in the car corroborated her testimony.
The court suggested there would be a mini trial on the collateral issue as to whom the heroin in the key chain belonged. The prosecutor then objected on the grounds of Evidence Code section 352. The court determined that defense counsel could ask Bueno why she stole the generator.
During Detective Clegg’s testimony, defense counsel renewed his request to introduce the drugs found in the car, arguing that Detective Clegg had “opened the door” in testifying that he had interviewed hundreds of suspects and referred to “people who use drugs and steal just about anything to support their habit.” Defense counsel wanted to ask the officer whether any drugs were found in the car. Defense counsel also wanted to get into evidence that Lee was interviewed and claimed he had smoked marijuana earlier on the day of the offense.
The prosecutor responded that Detective Clegg was not the officer who found anything in the car, that the only drugs found were under the passenger seat, and that the line of questioning would go beyond the scope of the court’s prior ruling. The prosecutor did not plan to introduce Lee’s statement. The prosecutor also did not plan to challenge Bueno’s claim that she had a drug habit. The prosecutor noted that she had previously prosecuted Bueno for drug possession. The court confirmed its prior ruling.
During the prosecutor’s cross-examination of defense witness Bueno, defense counsel complained that the defense had been “hampered” in its cross-examination of the officers and examination of Bueno concerning the drugs found in the car, Bueno’s and Lee’s drug histories and acts of stealing things together to support their drug habits. The prosecutor submitted “on our sidebar conferences.”
The court noted that it had permitted defense counsel to question Bueno about her drug habit, her use, her drugs of choice, her prior conviction and charges and the fact she was using as the reason for stealing the generator. The court concluded that prior instances of theft by Bueno with or without Lee “are going into collateral matters” which shed no light on whether defendant was involved with them in stealing the bait generator. The court excluded such evidence under Evidence Code section 352, finding that it would “consume additional time and draw the jury into collateral issues that are going to be confusing and misleading.”
After the prosecutor elicited inconsistent statements from Bueno concerning the entry of her plea and the facts underlying the same (Lee stole the generator alone versus she and Lee stole the generator together), defense counsel attempted yet again to introduce evidence that Bueno and Lee had committed prior acts of theft to support their drug habits. Defense counsel anticipated that Detective Clegg would be recalled to testify that Bueno told him that defendant and Lee stole the bait generator and she was just the driver.
The court denied defendant’s request to question Bueno about prior acts of theft with Lee, finding again that the issue was of minor relevance and collateral.
Analysis
Defendant argues that the court’s rulings “eviscerated” his defense and was “tantamount to a deprivation of his constitution[al] right to due process and to present a complete defense under the federal and California Constitutions.” To the extent he argues that due process required introduction of the evidence, he has forfeited such claim because he did not raise it in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 438.) To the extent defendant argues that the court’s ruling itself violates due process, he is required to show that the exclusion of evidence, even if erroneous under state law, made the trial fundamentally unfair. (Id. at pp. 438-439.) Defendant has failed to make such a showing and we will reject the argument. (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 990, fn. 5 [“rejection on the merits of a claim that the trial court erred . . . necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required”].)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (Evid. Code, § 354.) Relevant evidence is admissible (Evid. Code, § 351) but may be excluded “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182-183; People v. Williams (1997) 16 Cal.4th 153, 213.)
“Under the well-established rule, a defendant’s poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice. [Citation.] In some circumstances, however, evidence of a defendant’s poverty is admissible for the limited purpose of refuting a claim that he did not commit the offense because he did not need the money, or to eliminate other possible explanations for sudden wealth after the occurrence of a theft offense. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1076.)
The trial court determined that the foregoing policy of excluding such evidence as unfair to defendant did not apply when defendant offered the evidence. In finding that defendant’s financial status was simply not relevant, the court cited People v. Carrillo (2004) 119 Cal.App.4th 94 (Carrillo) which stated: “As the court explained in United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, ‘Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.’ (Id. at pp. 1108-1110 [reversing robbery conviction because the prosecutor introduced evidence of defendant’s ‘impecunious financial circumstances’].)” (Carrillo, supra, at p. 102.) The quote from Carrillo does not support the finding that the evidence is not relevant, only that the evidence of one’s financial status has little probative value.
We conclude that defendant has failed to demonstrate that the trial court abused its discretion in excluding the evidence. The prosecutor stated that defendant had been arrested for receiving stolen property during the time period covered by defendant’s spouse’s statement as to their good financial condition. The prosecutor asserted that an evidentiary hearing under Evidence Code section 402 would be required to determine defendant’s financial circumstances. The prosecutor would be allowed to refute any claim of lack of motive with defendant’s prior acts and character. On this record, we conclude the trial court did not abuse its discretion in excluding evidence of defendant’s financial condition at the time of the offense as requiring an undue consumption of time. (See Evid. Code, § 352.)
With respect to the heroin found in the car to bolster Bueno’s credibility, the trial court did not abuse its discretion in concluding that there would be a mini trial on the collateral issue as to whom the heroin in the key chain belonged. The trial court allowed defense counsel to ask Bueno why she stole the generator. The jury was informed that Bueno stole the generator to support her drug habit.
With respect to prior acts of theft by Bueno and Lee, the trial court did not abuse its discretion in concluding that prior instances of theft by Bueno with or without Lee “are going into collateral matters” which shed no light on whether defendant was involved with them in stealing the bait generator. As the court noted, it had permitted defense counsel to question Bueno about her drug habit, her use, her drugs of choice, her prior conviction and the fact she was using as the reason for stealing the generator. The court excluded evidence of prior acts of theft by Bueno and Lee, finding that it would “consume additional time and draw the jury into collateral issues that are going to be confusing and misleading.” We find no error.
III
Although conceding no California case supports his claim, defendant next contends that the trial court failed to instruct sua sponte in the language of CALJIC No. 14.27 which provides:
“An expression of opinion on value by the owner may be considered by you in determining value together with any other evidence bearing on that issue. In determining what weight to give an owner’s opinion, you should consider the believability of the owner, the facts or materials upon which the opinion is based and the reasons for the opinions.
“An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved [or has been disproved], consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based.
“You are not bound to accept an opinion as conclusive, but you should give to it the weight which you shall find it to be entitled. You may disregard any opinion if you find it to be unreasonable.”
Defendant claims that the trial court was required to instruct sua sponte with CALJIC No. 14.27 because a trial court is required to instruct sua sponte with CALJIC No. 2.80 (expert testimony -- qualifications of expert) when an expert testifies. Defendant claims CALJIC No. 2.80 mirrors CALJIC No. 14.27. In the alternative, defendant contends counsel rendered ineffective assistance in failing to request the instruction.
CALJIC No. 2.80 provides:
The trial court was not required to give CALJIC No. 14.27. As defendant notes, no California case requires instruction with CALJIC No. 14.27. We are unaware of a statute requiring instruction as to the opinion of an owner. In contrast, instruction as to the opinion of an expert is statutorily required. Section 1127b provides: “When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given.”
We reject defendant’s claim that counsel rendered ineffective assistance in failing to request CALJIC No. 14.27. The trial court instructed the jury on the valuation of property (CALJIC No. 14.26) and defense counsel presented argument on the value of the property taken. Defense counsel argued there was no evidence of the current value of the bait generator. The omitted instruction could have instructed the jury that the owner expressed an opinion of value and thus, suggested that there was evidence of current value, contrary to defense counsel’s argument. We conclude that defendant has failed to demonstrate counsel’s performance was deficient in not requesting CALJIC No. 14.27.
The trial court instructed the jury in the language of CALJIC No. 14.26 as follows:
Defense counsel argued: “There’s other things to consider which are not so much about what happened, but sort of legal points of law; for example, petty theft versus grand theft.
Defendant contends the trial court erroneously denied his motion for a new trial wherein he argued, inter alia, the trial court erred in excluding evidence of his financial condition to demonstrate his lack of motive to steal. The trial court denied the motion, finding defendant had presented no additional authority for the introduction of defendant’s lack of motive.
We previously found no error in the exclusion of the evidence of defendant’s financial status to demonstrate lack of motive; thus, the trial court properly denied the new trial motion on this ground.
V
The minute order and the amended abstract of judgment reflect that defendant was sentenced to state prison for the upper term of six years, doubled, for a term of 12 years. As defendant contends, these documents do not reflect the oral pronouncement of judgment; the trial court imposed the upper term of three years, doubled, for a term of six years. We will order the minute order and abstract of judgment corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The court imposed the upper term as follows:
DISPOSITION
The trial court is directed to prepare a corrected minute order and abstract of judgment to reflect the upper term of three years, doubled, for a term of six years and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: NICHOLSON , J., ROBIE , J.
“(a) The value of property may be shown only by the opinions of any of the following:
“(1) Witnesses qualified to express such opinions.
“(2) The owner or the spouse of the owner of the property or property interest being valued.
“(3) An officer, regular employee, or partner designated by a corporation, partnership, or unincorporated association that is the owner of the property or property interest being valued, if the designee is knowledgeable as to the value of the property or property interest.
“(b) Nothing in this section prohibits a view of the property being valued or the admission of any other admissible evidence (including but not limited to evidence as to the nature and condition of the property and, in an eminent domain proceeding, the character of the improvement proposed to be constructed by the plaintiff) for the limited purpose of enabling the court, jury, or referee to understand and weigh the testimony given under subdivision (a); and such evidence, except evidence of the character of the improvement proposed to be constructed by the plaintiff in an eminent domain proceeding, is subject to impeachment and rebuttal.
“(c) For the purposes of subdivision (a), ‘owner of the property or property interest being valued’ includes, but is not limited to, the following persons:
“(1) A person entitled to possession of the property.
“(2) Either party in an action or proceeding to determine the ownership of the property between the parties if the court determines that it would not be in the interest of efficient administration of justice to determine the issue of ownership prior to the admission of the opinion of the party.”
“The Court having taken these issues under submission, rules as follows:
“Defendant John Silva seeks to produce testimony from his wife that they were not facing financial difficulties. The evidence is offered to show defendant’s lack of motive to commit the alleged theft. The People respond that such evidence by defendant should allow them to show defendant’s prior theft-related offenses and character related to motive. Having considered the arguments presented during the pretrial conference and the briefing submitted, the Court issues the following tentative ruling:
“1. Evidence of defendant’s financial status is not relevant.
“It has long been held a defendant’s lack of money is not admissible to show motive to steal. Such evidence has traditionally been excluded on the grounds of fairness - it would put a poor defendant at a relative disadvantage. (People v. Wilson (1992) 3 Cal.4th 926, 939; People v. Gorgol (1953) 122 Cal.App.2d 281, 303; But see People v. Morales (1979) 88 Cal.App.3d 259, 264 [evidence defendant had no visible means of income yet supported a family of eight was relevant].)
“Defendant seeks to offer the opposite: Evidence of his financial wherewithal as circumstantial evidence he had no motive to commit the alleged theft. The traditional policy of excluding evidence of a defendant’s financial status as unfair to the defendant would not apply when defendant himself is offering the evidence. However, recent decisions recognize a separate reason for excluding such evidence -- it is simply not relevant. As the Court explained in People v. Carrillo (2004) 119 Cal.App.4th 94, 102:
“[‘]Lack of money gives a person an interest in having more. But so does a desire for money, without poverty. A rich man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value. (Citing United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1108.)[’]
“The defendant’s finances are relevant on the question of motive only if we assume people with money have no motive to steal. That premise is simply not true. The proffered evidence thus has little, if any, probative value.
“2. Introduction of this evidence would result in undue consumption of time on a collateral issue.
“If defendant presents evidence of his financial resources, the People will be entitled to explore the issue. (See, e.g. People v. Koontz (2002) 27 Cal.4th 1041, 1077.) This opens the door to a potentially time-consuming examination of defendant’s income, expenses, assets and debts. The time spent exploring such collateral issues would outweigh the dubious probative value such evidence has regarding defendant’s motive.
“3. The People may show evidence of defendant’s relevant prior acts.
“If defendant places his motive at issue, Evidence Code section 1101(b) permits the People to respond with appropriate evidence of prior acts by the defendant which would provide circumstanc[ial] evidence refuting the claim he had no motive to steal. (See e.g., People v. Pic’l. (1981) 114 Cal.App.3d 824, 855-856.)
“4. The People may show evidence of defendant’s character.
“Ostensibly offered as to defendant’s motive, the proffered evidence really goes to defendant’s broader disposition or character. The unspoken premise is that defendant would not steal absent a specific financial need. ‘When the motive of the crime is sought to be established before a jury, the whole conduct, life, and character of the parties affecting this question, is open to inquiry.’ (People v. Helfend (1969) 1 Cal.App.3d 873, 880.)
“Defendant may present evidence of his character to show conduct in conformity with such character. (Evid. Code § 1102(a).) The People may rebut the defendant’s evidence with their own evidence as to his character. (Evid. Code § 1102(b).) The People may also examine defendant’s character witness on her knowledge of defendant’s prior bad acts inconsistent with the character trait the witnesses testifies [sic] to. (People v. Hempstead (1983) 148 Cal.App.3d 949.)
“Conclusion
“For the foregoing reasons, it is the court’s tentative ruling that the proffered evidence of defendant’s financial status shall be excluded: It has little, if any probative value. What arguable probative value it may provide would be substantially outweighed by an undue consumption of time on collateral issues.
“If evidence of defendant’s financial status is admitted to show his lack of motive, the People may respond with appropriate evidence of defendant’s prior bad acts and/or character relevant to his motive.”
“[A witness] [Witnesses] who [has] [have] special knowledge, skill, experience, training or education in a particular subject [has] [have] testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. “An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based.
“You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”
“When the value of property alleged to have been taken by theft must be determined, the reasonable and fair market value at the time and in the locality of the theft shall be the test. Fair market value is the highest price, in cash, for which the property would have sold in the open market at that time and in that locality, (1) if the owner was desirous of selling, but under no urgent necessity to do so; (2) if the buyer was desirous of buying but under no urgent necessity to do so; (3) if the seller had a reasonable time within which to find a purchaser; and (4) if the buyer had knowledge of the character of the property and of the uses to which it might be put.”
“There has to be evidence presented to you that the generator is worth $400 or more or worth more than $400. If you think about it, the only evidence that you heard about the value of the generator was that brand new it costs $1,500 to $1,600.
“We never had any testimony about how old this generator is. We do with have [sic] some evidence of how beat up it is. There are some scratches that you can see on the pictures. It is clearly not this generator.
“The detective was asked several times about his research on E-Bay and his evidence about what the value of the generator is right now. He never put a value on it right now. He never testified to that. There is no evidence about the current value of the generator.
“So the absence of evidence means, with the presumption of innocence, that you cannot find that it has been proven to you beyond a reasonable doubt that the generator is worth $400 or more, because you don’t have any evidence. It doesn’t mean that the generator isn’t worth more than $400 used in its current condition, as many years as it is old. It just means that you don’t have any way of making that determination. That’s another example of how to apply the beyond a reasonable doubt standard and apply the evidence to the facts.
“In the jury room, when you are deliberating that particular element, and someone says, ‘Well, I think it’s grand theft,’ someone else needs to say, ‘What evidence is there that the value right now of this generator, if you sold it as a used generator, is $400 or more?’
“The only evidence is the value new. There is no evidence about depreciation, about anything else, about what sort of rate of depreciation generators have to have, what the used market is like, what people are willing to pay. There is just no evidence.”
“THE COURT: All right. [Defendant], you are not eligible for probation in this case because of the prior strike conviction. Even if you were eligible for probation, I would not grant probation in this case given your prior criminal record. [¶] It’s going to be my judgment and sentence that for a violation of [s]ection 487, as contained in Count One, that you be imprisoned for a period of six years. This reflects the upper term of three years for the violation of [s]ection 487 doubled for the prior strike pursuant to [s]ection 667. [¶] Now, my reasons for imposing the upper term: I have balanced the aggravating and the mitigating factors. I find circumstances in aggravation include that the crime evidenced some level of planning. I know [defense counsel] argues that the evidence shows that you did not participate in the planning. But that’s reading a lot into the testimony in this case. [¶] The evidence that I had before me was that you denied any participation in the plan or any participation in the event. I have Bueno’s testimony, which is of questionable credibility. Overall, this incident indicates planning. There were bolt cutters used. The chain had to be cut. This wasn’t a barroom fight that erupts spontaneously. There was some planning by somebody. [¶] An additional factor are you prior adult convictions. And the final factor, which weighs the most to me, is the number of prior times you have been to prison. You have been to prison three times before. That’s a significant aggravating factor, as I assess the case. [¶] [Defense counsel] has noted it has been 12 years since you have had a conviction. The convictions since your prior strike in [19]81 have been nonviolent. But I think in view of the prior terms that you have served and the other factors in aggravation, they outweigh the factors in mitigation. And that’s why I am imposing the upper term. Each one of those circumstances in aggravation that I mentioned would, by itself, warrant imposition of the upper term. And again, that term is doubled because of your prior strike conviction.” (Italics added.)