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Name: People v. Portillo (2023) 91 Cal.App.5th 577
Case #: B315241
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 05/15/2023
Summary

Evidence of a retail price for a stolen item is admissible for nonhearsay purposes in establishing the fair market value of the stolen item. A jury found defendants guilty of one count of grand theft each. On appeal, they argued there was insufficient evidence that the value of the stolen items—15 boxes of dumbbells—exceeded $950, because the prosecution offered inadmissible hearsay as proof of the dumbbells’ value. Held: Affirmed. Grand theft, as opposed to petty theft, is theft committed when the item taken is of a value exceeding $950. The only evidence of the dumbbells’ value was the testimony of the manager of the warehouse, who testified (over a defense hearsay objection) to the prices listed on three retailers’ websites for the same product. Evidence of a retail price for a stolen item, whether based on an online listing or a store price tag, is admissible for the nonhearsay purpose of showing that a retailer is advertising the item for a specified price in the marketplace. This price, in turn, is circumstantial evidence of the fair market value of the item, i.e., the highest price obtainable in the marketplace between a willing buyer and a willing seller. The jury need not decide the truth of whether a specific retailer would sell the item for the advertised price or the value the retailer places on the item, as the fair market value is “not the value of the property to any particular individual.” Thus, the three online prices were admissible as circumstantial evidence of the fair market value of the dumbbells. [Editor’s Notes: (1) The court also found sufficient evidence supported Orlando Portillo’s conviction for grand theft, where circumstantial evidence showed he arrived with his codefendant to the warehouse around 1:30 a.m.; the weight of the boxes meant that two people had participated to move them within the short time frame; and where Orlando was found hiding underneath a semitrailer truck parked at the other end of the loading dock. (2) Justice Segal filed a concurring opinion, and would have found that the prices were nonhearsay under the “verbal act” doctrine, which permits direct evidence of words used in making an offer in order to prove an essential element of an oral contract.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B315241.PDF