Jury properly considered sales tax in determining whether the value of a stolen cellphone exceeded $950. Seals stole a phone from a cellphone store. At his trial in 2016, the store clerk testified that the phone Seals stole typically sold for $899, plus sales tax, which increased the price to over $950. The jury convicted Seals of second degree commercial burglary (Pen. Code, § 459) and related offenses. He appealed, arguing it was improper for the jury to consider sales tax as part of the value of the phone. Held: Affirmed. Prior to defendant’s trial, Proposition 47 added Penal Code section 459.5, which created a separate misdemeanor offense of shoplifting. Shoplifting is the entry a commercial establishment with the intent to commit larceny where the value of the property taken does not exceed $950; any other entry into a commercial establishment with intent to commit larceny is burglary. The value of stolen property is determined using the fair market value test, meaning the highest price to which a willing buyer and willing seller would agree. Agreeing with Xerox Corp. v. County of Orange (1977) 66 Cal.App.3d 746, the court concluded that sales tax reimbursement may properly be viewed as part of the price a willing seller and buyer agree upon. Unlike in other states, retailers in California are not required to collect sales tax reimbursement from the buyer. This makes sales tax similar to other factors retailers take into consideration to increase the price of an item, such as advertising and overhead. When a retailer adds sales tax reimbursement to the total price of an item, that ultimate price is the highest price to which the willing buyer and seller agree, i.e. the fair market value of the item. The court disagreed with defendant’s argument that sales tax should not be included in the value where no sale has taken place.

The jury’s finding that the phone defendant stole was worth over $950 was supported by substantial evidence. At defendant’s trial, the cellphone store clerk testified that the phone typically sold for $899, which, with sales tax, was “nine-fifty. Almost 1,000.” While there was no testimony about the exact amount attributable to sales tax, the store clerk’s testimony that the phone usually sold for an amount that, including tax, was over $950 and close to $1,000 was sufficient to support the jury’s conclusion that the value of the phone exceeded $950.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B271109.PDF