Filed 9/1/26 P. v. Pelton CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089281
Plaintiff and Respondent,
(Super. Ct. Nos. VCF438594A,
v. F21903486, 21CR30403-01 &
20FE008303)
SEAN MICHAEL PELTON,
Defendant and Appellant. OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Myrle Reed, Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and
Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On four separate occasions, Sean Michael Pelton (appellant) and his accomplices
cut holes in the perimeter fence of a commercial lot, entered the property, and stole
numerous catalytic converters by cutting them from large service trucks. A jury
convicted appellant as charged of 73 counts of grand theft (Pen. Code, § 487, subd. (a)),1
three counts of attempted grand theft (§§ 664, subd. (a), 487, subd. (a)), and four counts
of felony vandalism (§ 594, subd. (b)(1)). The trial court sentenced appellant to an
aggregate determinate term of 16 years eight months pursuant to section 1170,
subdivision (h), consisting of 15 years in the instant matter, and an additional one year
eight months on previously imposed out-of-county judgments.
Appellant raises numerous claims on appeal, including claims of evidentiary error,
instructional error, insufficient evidence, erroneous denial of a request for ancillary
defense funding, and error related to sentencing and restitution. We reject those claims.
However, we agree with appellant that the trial court failed to properly advise him of his
right to a jury trial on certain aggravating factors, and that his admissions to those factors
were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s
sentence and remand the matter for a full resentencing. Because appellant must be fully
resentenced, we need not address his claims that the trial court abused its discretion at
sentencing in applying sections 654 and 669, improperly resentenced him on his
preexisting out-of-county judgments, and incorrectly calculated his custody credits. In all
other respects, we affirm.
FACTUAL BACKGROUND
I. The Theft Incidents.
Each of the four theft incidents took place at the same AT&T service yard in
Visalia. The facility housed approximately 30 to 40 large service trucks, which were
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
used to respond to customer requests for service, maintenance, and repairs. The yard was
closed to the public and surrounded by a chain-link fence that AT&T staff regularly
inspected. Technicians were present at the yard from approximately 7:30 a.m. to
7:30 p.m., and mechanics staffed the onsite repair shop until approximately 10:00 p.m.
A. March 8, 2020 (counts 1–23, 25).
On March 8, 2020, law enforcement responded to the Visalia service yard on a
report of catalytic converter theft. Officers discovered that catalytic converters had been
removed from 20 service trucks. Each truck had two cuts in the exhaust system beneath
it, and the portion containing the converter had been removed. A reciprocating saw blade
was found on the ground near one of the trucks. Three additional trucks had cuts to their
exhaust systems, but the converters remained in place. The thefts and resulting damage
rendered the affected trucks unavailable for service until repairs could be completed,
which took several days to several weeks.
Officers also discovered openings cut into the perimeter fence in multiple
locations. Surveillance video from an adjacent business showed a Toyota Sequoia stop in
the area around 10:00 p.m. the night before the thefts were reported. The service yard
was situated in an industrial area, and none of the nearby businesses were open at that
hour. The Sequoia returned around 3:00 a.m., parked near one of the openings in the
perimeter fence, and left around 5:30 a.m.
The surveillance video did not capture the license plate number of the Toyota
Sequoia seen near the service yard. However, vehicle registration records showed that
appellant was the registered owner of a Toyota Sequoia.
B. June 17, 2020 (counts 26–46).
On the morning of June 17, 2020, AT&T service yard employees discovered that
multiple holes had been cut in the perimeter fence and that catalytic converters had been
3.
removed from 20 service trucks. A saw blade was found on the ground near one of the
trucks. An officer also located a set of bolt cutters in the bushes on a nearby lot.
Surveillance footage from nearby businesses showed that the same Toyota
Sequoia from the March incident arrived in the area around midnight. The Sequoia
moved among various locations near the service yard before departing the area at
approximately 5:00 a.m. During that period, a man identified as Dennis T., appellant’s
accomplice, periodically walked into and out of view of one of the surveillance cameras.
C. September 29, 2020 (counts 24, 47–62).
On the morning of September 29, 2020, AT&T service yard employees discovered
that catalytic converters had been removed from 16 service trucks. Multiple openings
had been cut into the perimeter fence. Surveillance footage from an adjacent business
captured a dark-colored pickup truck in the area at approximately 11:20 p.m. the previous
night.
D. July 15, 2021 (counts 63–80).
On the morning of July 15, 2021, AT&T service yard employees discovered that
catalytic converters had been removed from 17 service trucks. Openings had been cut
into the perimeter fence in multiple locations. Surveillance footage from an adjacent
business showed a Honda Pilot parked for several hours in the business’s parking lot,
near one of the fence openings. The surveillance video did not capture the license plate
number of the Pilot, but vehicle-registration records showed appellant was the registered
owner of a Honda Pilot.
II. Law Enforcement Investigation.
After the March 2020 theft, a detective prepared a Google “geofence” warrant
seeking information about electronic devices located near the service yard at the time of
the incident. Because the warrant was limited to data available from Google, it identified
only devices connected to Google. The warrant showed that a cell phone registered to
4.
“Regina [C.]” traveled to Visalia on the night of the theft.2 At one point, location data
placed the phone in the same driveway as the Toyota Sequoia seen on surveillance
footage. Records for that phone showed numerous incoming and outgoing calls with a
cell phone number that the parties stipulated belonged to appellant. The calls occurred
between 10:45 p.m. and 5:30 a.m., including one call that lasted more than four hours.
A geofence warrant obtained for the June 2020 theft showed that devices
registered to Dennis T. and R.C., Dennis’s then girlfriend, traveled together from a hotel
in Tulare to the Visalia service yard that night, and later returned to the hotel. Location
data showed that the devices registered to Dennis entered the service yard, while R.C.’s
device remained outside.
Records from the Tulare hotel showed appellant rented and paid for a room on the
night of the June 2020 theft. The other registered guest was listed as “[R.] Pelton,” an
apparent amalgamation of R.C.’s first name and appellant’s last name. The registration
form listed two associated vehicles, one of which was a Toyota Sequoia.
The hotel records also identified an additional cell phone number associated with
appellant. Location data for that number showed the phone at both the Visalia service
yard and the Tulare hotel on the night of the June 2020 theft. Dennis T.’s cell phone
records likewise reflected communications with appellant’s phone numbers during the
theft.
Location data for appellant’s additional cell phone also placed the phone in Visalia
and Tulare on the night of the September 2020 theft. Cell phone records further showed
that appellant, Dennis T., and R.C. communicated throughout the night of that theft.
The prosecution introduced text messages between Dennis T. and R.C. from July
and August 2020. Those messages included references to “working” with appellant, the
amount of money made on a specific night, and the need for bolt cutters. On the evening
2 The identity of “Regina C.” was never established at trial.
5.
of the September 2020 theft, Dennis messaged R.C. that he was “[s]itting waiting for the
security guard to leave.”
Additional text messages between appellant and R.C. from July, August, and
September 2020 were also admitted. In those messages, appellant and R.C. discussed
acquiring bolt cutters, cutting a fence, R.C. acting as a lookout, and scouting various
locations, including an AT&T service yard.
With respect to the July 2021 theft, geofence data showed that multiple electronic
devices registered to Dennis T. were present at the Visalia service yard that night. The
following day, appellant and Dennis were arrested at another AT&T service yard, where
appellant’s Honda Pilot was also present.
III. Accomplice Testimony.
Dennis T. testified that he and appellant stole catalytic converters from the Visalia
AT&T service yard during the June 2020, September 2020, and July 2021 incidents.
Dennis’s then girlfriend, R.C., served as a lookout on at least one occasion. Dennis
identified himself in the June 2020 surveillance footage. According to Dennis, appellant
owned several vehicles at the time of the thefts, including a Toyota Sequoia, a Ford
pickup truck, and a Honda Pilot.
Dennis T. described the manner in which the thefts were committed. He and
appellant watched the service yard from a distance to confirm that the employees had left
before entering. Appellant brought multiple cell phones, using one to communicate with
the other participants and another to monitor a police scanner. They accessed the yard by
cutting holes in the perimeter fence with bolt cutters and created openings in different
locations to provide multiple routes of escape.
Dennis T. explained the theft operations generally took between two and
five hours to complete. The converters were removed from the service trucks by making
two cuts in the exhaust system with a battery-powered reciprocating saw. Dennis
6.
estimated that five converters could be cut out in approximately 34 minutes. During the
thefts, Dennis and appellant wore gloves to protect their hands and to avoid leaving
fingerprints.
Dennis T. denied that he personally cut the converters from the trucks during the
alleged theft incidents. Instead, he testified that his role was to cut the fence, carry the
converters out of the yard, and place them into one of their vehicles. Once the thefts
were complete, appellant sold the converters. Dennis did not know the identity of the
buyer. Appellant then paid Dennis based on how much appellant received for the
converters. According to Dennis, the amount “could vary from $100 a vehicle to
seven grand sometimes.”
Dennis T. was originally charged as a codefendant in this case. Before trial, he
entered into a plea agreement under which he received a probation sentence in exchange
for his truthful testimony against appellant.
IV. Other Crimes Evidence.
Pursuant to Evidence Code section 1101, subdivision (b), the prosecution
introduced evidence that appellant participated in three similar catalytic converter thefts
at other AT&T service yards.
On May 22, 2020, officers responded to a reported theft at an AT&T service yard
in Sacramento, where they observed two holes cut in the perimeter fence. Officers
located appellant’s Toyota Sequoia parked outside the yard and observed two cut
catalytic converters inside of the vehicle. Appellant was detained nearby, and a power
saw was found in his backpack.
On December 26, 2020, officers responded to an AT&T service yard in Clovis
regarding catalytic converter theft. The perimeter wrought iron fence had been cut, and
catalytic converters had been stolen from 20 service trucks. Surveillance footage
captured appellant moving through the service yard on the night of the theft.
7.
Officers were dispatched to the same Clovis service yard at approximately
2:00 a.m. on January 4, 2021. Multiple holes had been cut in the perimeter fence.
Appellant was observed moving through the yard and was arrested. Officers also located
a duffel bag containing a reciprocating saw and additional saw blades and batteries.
V. Theft Valuation Evidence.
The prosecution called a lead investigator from AT&T’s “Global Security and
Investigations” unit. His duties included investigating internal and external crimes
against AT&T throughout the Central Valley. He explained that, for several years, he
had served as a primary investigator on catalytic converter theft cases involving hundreds
of incidents at AT&T service yards across California.
The lead investigator testified that he was familiar with the Visalia service yard
thefts alleged in this case. Based on his experience, he opined that it would cost
approximately $1,700 to purchase a replacement catalytic converter for the large service
trucks involved in those incidents. He also explained that the thefts affected AT&T’s
ability to operate and serve its customers because the company could not dispatch
technicians to residences or businesses when service vehicles were unavailable.
The prosecution next called AT&T’s associate director of fleet operations. He
oversaw approximately 70 AT&T vehicle repair facilities in California and Nevada,
which serviced about 12,000 vehicles. He explained that AT&T also used outside
vendors for vehicle maintenance and repair.
The associate director testified that AT&T maintained service records for its fleet
vehicles, tracking parts, labor, and repairs for each individual vehicle. The records were
made in the regular course of business, at or near the time of service, and stored in an
electronic database. As part of his duties, the associate director had access to the records
and maintained and created records. He was also responsible for approving invoices up
to $5,000. None of these records were admitted into evidence.
8.
The associate director was familiar with the four theft incidents at the Visalia
service yard. After each incident, AT&T attempted to repair the affected vehicles. The
associate director explained, however, that repair is not always possible after a catalytic
converter theft, depending on the availability of the replacement converter and whether
the manufacturer still produces the particular part. Although he did not recall whether
any of the service trucks involved in this case could not be repaired for that reason, he
testified that, when a replacement converter is unavailable, the vehicle would be
auctioned or salvaged for parts. He also testified that he may have reviewed the service
records for the affected vehicles but noted that he reviews thousands of records each
week.
The associate director explained that the cost to replace a catalytic converter for a
service truck depends on several factors, including whether the vehicle must be towed
and whether the theft caused additional damage to the vehicle. The prosecutor then
narrowed the question to the cost of the replacement converter itself, excluding towing
and labor. The associate director opined that, based on his experience, the part alone
would cost “about $1,600 to $2,000.” He also noted that, during the COVID-19
pandemic, reduced manufacturing capacity required AT&T to pay higher prices to obtain
catalytic converters.
The prosecutor asked the associate director whether AT&T could acquire and
install a used catalytic converter on a service truck after a theft. The associate director
responded: “It depends. [¶] The [California] Air Resource Board has strict guidelines
on aftermarket parts for catalytic converters. They have really, really strict emission
laws.” He further explained that those regulations limited the replacement parts AT&T
could use after a catalytic converter was stolen.
9.
VI. Vandalism Valuation Evidence.
AT&T hired an outside contractor to repair the damage to the perimeter chain-link
fence after each theft incident. The resulting repair costs were $3,400 for the March 2020
incident, $1,150 for the June 2020 incident, $1,190 for the September 2020 incident, and
$729 for the July 2021 incident. The contractor testified that the repair charges included
a $425 call-out fee and $165 per hour for the repairperson’s time on site. His company
also installed expanded metal over the cut area to reinforce the fence. However, he
clarified that even if the expanded metal had not been installed, the cost to repair the
fence damage from each incident would still have exceeded $400.
PROCEDURAL BACKGROUND
The Tulare County District Attorney’s Office filed a second amended information
charging appellant with 73 counts of grand theft (§ 487, subd. (a)), three counts of
attempted grand theft (§§ 664, subd. (a), 487, subd. (a)), and four counts of felony
vandalism (§ 594, subd. (b)(1)). The People alleged that appellant committed 20 counts
of grand theft, three counts of attempted grand theft, and one count of felony vandalism
on March 8, 2020 (counts 1–23, 25), 20 counts of grand theft and one count of felony
vandalism on June 17, 2020 (counts 26–46), 16 counts of grand theft and one count of
felony vandalism on September 29, 2020 (counts 24, 47–62), and 17 counts of grand theft
and one count of felony vandalism on July 15, 2021 (counts 63–80). Each theft was
alleged to have involved the theft or attempted theft of a catalytic converter from a
specific vehicle.
The information also alleged, as to each count, the following factors in
aggravation: appellant “induced others to participate in the commission of the crime[s] or
occupied a position of leadership and dominance” (Cal. Rules of Court, rule 4.421(a)(4));
appellant carried out the crimes in a manner indicating “planning, sophistication, or
professionalism” (id., rule 4.421(a)(8)); the alleged crimes “involved an attempted or
actual taking or damage of great monetary value” (id., rule 4.421(a)(9)); appellant’s
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“prior convictions … are numerous and of increasing seriousness” (id., rule 4.421(b)(2));
appellant has served prior prison terms (id., rule 4.421(b)(3)); appellant “was on
probation … [or] parole” when he committed the alleged offenses (id., rule 4.421(b)(4));
and appellant’s prior performance on probation and parole was unsatisfactory (id.,
rule 4.421(b)(5)).
Prior to trial, appellant waived his Sixth Amendment right to the assistance of
counsel and elected to represent himself. (See Faretta v. California (1975) 422 U.S.
806.)
After the close of evidence, appellant admitted the aggravating factors alleged
pursuant to California Rules of Court, rule 4.421(b)(2) through (5). The jury convicted
appellant as charged and found true the remaining alleged aggravating factors.
The trial court sentenced appellant to an aggregate determinate term of 16 years
eight months pursuant to section 1170, subdivision (h), based on his convictions in the
instant case and previously imposed determinate sentences in Sacramento County,
Amador County, and Fresno County. As to the instant case, the court designated count 1
as the principal term and imposed the upper term of three years based on the aggravating
factors found true by the jury and admitted by appellant. The court also imposed
consecutive determinate terms of eight months on 18 additional grand theft counts
(counts 2–7, 24, 26–30, 47–52) for a total sentence of 15 years on the instant case. The
court imposed concurrent terms on the remaining counts.
As to the out-of-county matters, the court imposed consecutive terms of
eight months and four months, respectively, for appellant’s Fresno County grand theft
and attempted grand theft convictions, a consecutive eight-month term for appellant’s
Amador County felony vandalism conviction, and a concurrent 16-month term for
appellant’s Sacramento County grand theft conviction.
11.
DISCUSSION
I. Appellant’s Challenges to His Grand Theft Convictions Based upon the
Valuation of Stolen Property Are Without Merit.
Appellant’s grand theft charges were based on the theory that the value of each
stolen catalytic converter exceeded $950. (§ 487, subd. (a).) For theft offenses, the value
of property taken is determined by its “reasonable and fair market value.” (§ 484,
subd. (a).)
Appellant contends the trial court failed to recognize that the only proper measure
of fair market value was the price the actual stolen catalytic converters, in their used
condition, “would have gone for on the resale market.” Based on this premise, he asserts
the court erred in admitting the opinion testimony of the AT&T employees regarding the
cost of acquiring replacement catalytic converters and did not accurately instruct the jury
on the question of fair market value. Likewise, he contends the prosecution presented no
competent, relevant evidence of fair market value, necessitating a reduction of all the
theft offenses to petty theft misdemeanors.
We reject appellant’s contentions. As we explain, replacement cost may, under
appropriate circumstances, constitute relevant evidence of the fair market value of stolen
property. Given the circumstances of this case and the nature of the stolen property, the
trial court properly admitted evidence of the cost to acquire comparable replacement
catalytic converters. The jury was entitled to rely on that evidence in finding that the
value of the stolen property in each theft count exceeded the $950 threshold, and no
related instructional error occurred.
A. Relevant Background.
1. Pretrial proceedings.
Before trial, appellant moved to exclude evidence of the cost of new replacement
catalytic converters purchased by AT&T, arguing that replacement cost was irrelevant to
fair market value. Appellant maintained that fair market value should instead be
12.
measured by the converters’ “recycled value,” based on what he described as a
“substantial and lucrative market for used catalytic converters” due to the precious metals
they contain. He also objected on hearsay grounds to valuation opinion testimony from
AT&T employees. The prosecutor responded that AT&T employees could testify
regarding the value of the stolen property under Evidence Code section 813, as well as
through expert opinion testimony from those same employees.
At the hearing on motions in limine, the trial court denied appellant’s request to
exclude evidence of replacement converter costs, but deferred ruling on valuation opinion
testimony until foundation was laid at trial. The prosecutor also moved to exclude
defense hearsay evidence regarding valuation, noting that appellant had indicated he had
researched catalytic converter values and communicated with vendors. The prosecutor
argued such evidence would be inadmissible unless the vendors testified, and that even if
appellant testified, he could not relay his own research or statements by others concerning
cost. The court stated appellant would be subject to the same evidentiary rules as the
prosecution regarding hearsay valuation evidence. The court further explained appellant
could not testify unless he was sworn as a witness, and no valuation testimony would be
admitted without a proper foundation.
2. Trial proceedings.
During his opening statement, appellant asserted that he had made money his
“whole life” by buying catalytic converters and reselling them at a profit to a smelter,
which would melt them down for their precious metals. He further asserted that,
beginning in 2020, he purchased stolen catalytic converters from Dennis T. and R.C.,
knowing they were stolen. According to appellant, he bought the converters for $100 and
resold them for $300. Appellant did not testify at trial or present witnesses, and no
evidence was introduced to substantiate these assertions.
13.
As detailed above, two AT&T employees testified regarding the purchase price of
replacement catalytic converters. During the lead investigator’s testimony, the prosecutor
asked, based solely on his experience as an AT&T employee and without reference to
any specific vehicles or records, whether he had an opinion regarding the cost of a
replacement catalytic converter for one of AT&T’s service trucks. Appellant objected on
relevance, foundation, and personal-knowledge grounds. The trial court overruled the
objections and observed that the lead investigator “may have an opinion as to how much
the converters cost based on his experience and expertise.” The lead investigator then
attempted to add that his opinion was also based on his investigations and review of
records for the vehicles involved in this case. The court interrupted, stating that the
explanation was “inappropriate” and nonresponsive to the question asked. The
investigator thereafter testified that, “based on [his] experience within AT&T,” the
approximate replacement cost of a comparable catalytic converter was $1,700.
Appellant also objected to the associate director’s opinion that the approximate
replacement cost of a catalytic converter for one of AT&T’s service trucks ranges from
$1,600 to $2,000. Specifically, on cross-examination, the associate director confirmed
that, when AT&T ordered catalytic converters from outside vendors, he learned the prices
from invoices entered into AT&T’s vehicle records by those vendors. Appellant objected
on foundation and hearsay grounds, and the trial court overruled the objection.
3. Jury instructions.
The trial court instructed the jury on the elements of theft with CALCRIM
No. 1800. With respect to the distinction between grand theft and petty theft, the court
instructed the jury with CALCRIM No. 1801, which provided, in pertinent part:
“[Appellant] committed grand theft if the value of the property is
more than $950.
“The value of property is the fair market value of the property.
14.
“Fair market value is the price a reasonable buyer and seller
would agree on if the buyer wanted to buy the property and the seller
wanted to sell it, but neither was under an urgent need to buy or sell.”
The trial court instructed the jury with CALCRIM No. 1860 (Owner’s Opinion of
Value), which provided:
“A witness gave his opinion of the value of the property he owned.
In considering the opinion, you may but are not required to accept it as true
or correct. Consider the reasons the witness gave for any opinion, the facts
or information on which he relied in forming that opinion, and whether the
information on which the witness relied was true and accurate. You may
disregard all or any part of an opinion that you find unbelievable or
unreasonable. You may give the opinion whatever weight, if any, you
believe it deserves.”
Lastly, the court instructed the jury on the evaluation of expert testimony.
(CALCRIM. No. 332.)
Appellant expressly submitted to the above instructions at the jury instruction
conference and offered no objection.
4. Closing arguments.
During closing argument, the prosecutor asserted that the lead investigator and
associate director were “experts in this area,” and that their testimony established the
converters’ value exceeded the $950 threshold for grand theft.
Appellant responded that fair market value had to be based on the used condition
of the catalytic converters, and that the prosecution’s witnesses had addressed only
replacement value. When appellant attempted to discuss his personal experience buying
and selling used converters, the trial court sustained the prosecutor’s objection that the
argument relied on facts not in evidence.
In rebuttal, the prosecutor argued that appellant’s view of fair market value did not
bind the prosecution. The prosecutor maintained that fair market value could be
established through opinion testimony and circumstantial evidence, and that the AT&T
witnesses’ testimony showed what AT&T had to pay “to buy compatible catalytic
15.
converters in the open market.” He also observed that appellant could have presented
contrary evidence regarding fair market value.
5. Appellant’s motion for judgment of acquittal and new trial
motion.
At the close of evidence, appellant moved under section 1118.1 for a judgment of
acquittal. As relevant here, he argued that the grand theft counts should be reduced to
misdemeanors because the prosecution had presented evidence of replacement cost, not
fair market value. (See § 1097.) The prosecutor responded that the lead investigator and
associate director were qualified to offer valuation opinions, and that the weight of those
opinions was a matter for the jury. The trial court found substantial evidence supported
the grand theft counts and denied the motion.
After the jury returned its verdicts, appellant moved for a new trial, renewing his
argument that the prosecution’s valuation evidence established replacement cost rather
than fair market value. He also asserted that he had conducted further investigation and
found that replacement catalytic converters for some of the service trucks cost less than
$950. The trial court denied the motion.
B. Applicable law – grand theft and valuation of stolen property.
Theft is the taking of the personal property of another with the intent to steal the
property. (§ 484, subd. (a); see People v. Davis (1998) 19 Cal.4th 301, 305.) The crime
of theft is divided into two degrees: grand theft and petty theft. (§ 486.) Section 487,
subdivision (a), defines grand theft to include the taking of personal property “of a value
exceeding [$950].”
For purposes of theft offenses, the value of the property taken is determined by its
“reasonable and fair market value.” (§ 484, subd. (a).) “The fair market value of an item
is ‘the highest price obtainable in the market place’ as between ‘a willing buyer and a
willing seller, neither of whom is forced to act.’ ” (People v. Grant (2020)
57 Cal.App.5th 323, 329 (Grant); see People v. Romanowski (2017) 2 Cal.5th 903, 915
16.
(Romanowski); see also CALCRIM No. 1801.) “Fair market value is ‘not the value of
the property to any particular individual.’ ” (Grant, at p. 329; see People v. Lizarraga
(1954) 122 Cal.App.2d 436, 438.) It also does not include incidental expenses incurred
by the victim, such as the cost of reinstalling a stolen part. (People v. Simpson (1938)
26 Cal.App.2d 223, 228–229.)
“Fair market value may be established by opinion or circumstantial evidence.”
(Grant, supra, 57 Cal.App.5th at p. 329.) This includes testimony by the owner of the
property, or his or her qualified agents, as to its value. (Evid. Code, § 813, subd. (a)(2),
(3); People v. Coleman (1963) 222 Cal.App.2d 358, 361 (Coleman).) “Jurors may also
‘rely on their common knowledge’ in determining the value of an item.” (Grant, at
p. 329.)
C. Fair market value is not limited to the posttheft resale price of stolen
property.
Appellant’s valuation claims are premised on his assertion that the catalytic
converters’ fair market value could only be measured by “the value the actual used
converters would have gone for on the resale market.” He argues that evidence of the
cost to acquire a new replacement converter was irrelevant, inadmissible, and insufficient
to support the jury’s finding that each stolen converter was worth more than $950. In
appellant’s view, the converters had to be valued according to the price they would have
fetched on the open market after the theft was completed, that is, as “a used old
converter, chopped from a vehicle,” rather than as “a still-packaged, separately sold
replacement part.”
Although section 484 makes “reasonable and fair market value” the governing
measure, it does not prescribe a single method for determining that value or identify the
market by which value must be measured in every case. Fair market value is an objective
measure, but its application necessarily depends on the character of the property and the
circumstances under which it is held, used, and exchanged. Thus, appellant is incorrect
17.
to assume that fair market value is necessarily determined by the price a thief could
obtain for the property after removing it from its functional setting.
Retail theft cases illustrate the point. California courts have recognized that the
retail price of goods stolen from a retailer is admissible and, absent contrary evidence,
sufficient to establish fair market value. (People v. Tijerina (1969) 1 Cal.3d 41, 45; see
People v. Cook (1965) 233 Cal.App.2d 435, 438.) The trier of fact need not value stolen
retail goods by reference to another market, such as the wholesale price, because that
approach would disregard the commercial reality that a retailer’s role in transporting,
marketing, and displaying goods increases their market value. (Cook, at p. 438; People v.
Swanson (1983) 142 Cal.App.3d 104, 108.) For the same reason, the trier of fact is not
required to value stolen retail goods by the price they might command in a posttheft
resale market.
Comparable logic applies where the stolen goods have a “unique or restricted use
and an extremely limited market,” such that the resale price of the property does not
fairly reflect its value. (People v. Renfro (1967) 250 Cal.App.2d 921, 924 (Renfro).) In
Renfro, the defendant was convicted of grand theft for stealing cable from a storage yard.
(Id. at p. 922.) The cable was of a type only used by telephone companies and had been
made to specification. (Id. at pp. 923–925.) At trial, the prosecution introduced evidence
of the victim telephone company’s purchase price for the cable to establish that its fair
market value exceeded the grand-theft threshold. (Id. at p. 923.) The defendant, by
contrast, presented testimony from a “junk dealer,” who opined that “the only open
market for the type of cable taken was as ‘scrap metal,’ ” and that the cable’s value was
below the grand-theft threshold. (Ibid.)
On appeal, this court rejected the defendant’s argument that the only competent
evidence of the cable’s fair market value was its salvage price. (Renfro, supra,
250 Cal.App.2d at pp. 922–923.) We explained that where property has “a unique or
restricted use and an extremely limited market, the actual or replacement cost to the one
18.
from whom it was stolen is its fair market value.” (Id. at p. 924.) Otherwise, valuable
property used in industry would be jeopardized because, once stolen, “the only remaining
use for such property, and hence the only market therefor, is as ‘salvage.’ ” (Ibid.)
Accordingly, we held that under these circumstances, “ ‘market value’ ” was synonymous
with “ ‘replacement value,’ ” and the finder of fact could rely on replacement cost to
determine the cable’s fair market value. (Id. at pp. 924–925.)
Renfro’s reasoning applies here. The catalytic converters were functioning
emissions-control components installed on large commercial service trucks. The
associate director’s testimony established that, because of the California Air Resource
Board’s strict guidelines and emissions standards, AT&T’s ability to replace stolen
converters with used parts was substantially restricted. From this evidence, the jury
could reasonably infer that catalytic converters compatible with AT&T’s large service
trucks had a unique or restricted use and an extremely limited market. Once removed
from the vehicles on which they were installed, the converters had limited value except as
salvage. Appellant’s act of cutting the converters from the vehicles did not require the
jury to value them only as damaged, severed parts in whatever resale or salvage market
might have existed after the theft. As in Renfro, the jury could reasonably conclude that
the cost of acquiring legally compliant replacement converters was probative of the
converters’ fair market value, because that market reflected the value of the property in
its functional use when taken.
Appellant nonetheless contends, without evidentiary support, that the fair market
value of the stolen converters could have been readily established by reference to a
market for comparable used converters. That argument overlooks both the associate
director’s testimony and the regulatory framework to which he referred. California Air
Resource Board regulations provide that “no person shall install, sell, offer for sale, or
advertise any used, recycled, or salvaged catalytic converter in California.” (Cal. Code
Regs., tit. 13, § 2222, subd. (i)(1).) Given that prohibition, the record provides no basis
19.
to conclude a lawful used-converter market existed, much less that the prosecution was
required to prove value by reference to such a market.3
It is true that California courts have held certain used stolen goods are properly
valued in their used condition on the resale market, rather than by replacement cost.
(People v. Simpson, supra, 26 Cal.App.2d at p. 229 [stolen ignition magnetos from
tractors]; Coleman, supra, 222 Cal.App.2d at p. 361 [stolen automotive tools]; People v.
Haney (1932) 126 Cal.App. 473, 475 [stolen equestrian equipment].) Those cases,
however, involved property that retained a lawful secondhand use and whose market
value was not materially altered by the theft. The catalytic converters here are different.
Once cut from AT&T’s service trucks, their lawful utility as replacement parts was
severely restricted, leaving salvage as their principal remaining use. Under Renfro, the
jury was not required to treat that diminished scrap value as the sole measure of fair
market value.
In his reply brief, appellant claims that the rule of lenity requires us to reject
Renfro and hold, as a matter of law, that the stolen converters’ fair market value could not
equal their replacement cost. We disagree. The rule of lenity applies only where there is
“ ‘ “egregious ambiguity” ’ ” in the statutory framework, such that the court “ ‘ “can do
no more than guess what the legislative body intended.” ’ ” (People v. Manzo (2012)
53 Cal.4th 880, 889.) The rule does not compel the rejection of established case
authority, and no such “egregious ambiguity” exists here. Section 484 supplies the
governing fair-market-value standard, and Renfro explains how that standard applies to
3 Romanowski does not compel a different conclusion. There, the Supreme Court
held that courts may consider illicit markets in valuing stolen property. (Romanowski,
supra, 2 Cal.5th at pp. 915–916.) But the case involved the distinct problem of valuing
stolen access-card information, property for which no ordinary lawful market existed.
(Ibid.)
20.
property with a unique or restricted use and limited market. (Renfro, supra,
250 Cal.App.2d at pp. 924–925.)
Appellant also asserts that, before the jury could consider the cost of acquiring
replacement catalytic converters, it had to be expressly instructed that it must find beyond
a reasonable doubt the “factual preconditions” identified in Renfro—that the converters
had a “unique or restricted use” and an “extremely limited market.” (Renfro, supra,
250 Cal.App.2d at p. 924.) He contends the omission of such an instruction violated due
process because the prosecution must prove beyond a reasonable doubt every element of
the charged offense. (See Victor v. Nebraska (1994) 511 U.S. 1, 5; People v. Flood
(1998) 18 Cal.4th 470, 491–492.) But Renfro did not redefine grand theft to include
additional elements. Rather, it identified evidentiary circumstances supporting an
inference that replacement cost represents fair market value. Appellant cites no authority
requiring the jury to make separate findings on such evidentiary circumstances, and we
decline to impose one.
Accordingly, we conclude that evidence of the cost to acquire comparable
replacement catalytic converters was relevant and competent evidence of fair market
value. Its admission fell within the trial court’s broad discretion over questions of
relevance and admissibility. The jury was permitted, but not required, to consider that
evidence and assign it whatever weight it deemed appropriate in determining whether the
prosecution proved that each catalytic converter was worth more than $950.
With these principles in mind, we turn to appellant’s specific claims of evidentiary
error, instructional error, and insufficient evidence.
D. Appellant’s claims of evidentiary error are without merit.
1. The replacement-cost opinion testimony was supported by
ample foundation.
Appellant contends there was inadequate foundation for the lead investigator and
associate director to offer their opinions on the value of the stolen catalytic converters.
21.
Based on his position that fair market value could only be measured by the price
comparable used converters would have fetched on the resale market, he argues their
opinions lacked foundation because neither witness testified to familiarity with used-
converter prices.
When property is owned by a business entity, its value may be established through
opinion testimony from “[a]n officer [or] regular employee … knowledgeable as to the
value of the property.” (Evid. Code, § 813, subd. (a)(3).) Value may also be established
through expert opinion testimony. (Id., subd. (a)(1); People v. Lizarraga, supra,
122 Cal.App.2d at pp. 437–438 [experienced furriers testified to value of stolen furs];
People v. Williams (1959) 169 Cal.App.2d 400, 403 [experienced salesclerk testified to
value of stolen suits].)
Although the trial court did not formally designate the lead investigator and
associate director as expert witnesses, its comments during their testimony and
instructions to the jury demonstrate that their valuation testimony was admitted as expert
opinion testimony. (See Evid. Code, § 402, subd. (c) [ruling on admissibility of evidence
implies prerequisite factual finding].) Whether a witness is qualified to offer an expert
opinion, and whether the opinion is supported by an adequate foundation, are matters
committed to the trial court’s discretion and reviewed for abuse of discretion. (People v.
Dowl (2013) 57 Cal.4th 1079, 1089; People v. Jones (2013) 57 Cal.4th 899, 950–951;
People v. McDowell (2012) 54 Cal.4th 395, 426.)
Appellant’s claim depends on the incorrect assumption that fair market value
could be proved only by evidence of the converters’ used resale value. As we explained
above, given the unique and restricted use of catalytic converters and their extremely
limited resale market for anything other than salvage, the cost of acquiring replacement
converters was competent, relevant evidence of fair market value. (See Evid. Code,
§ 210 [relevant evidence is evidence “having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action”].) Thus, the
22.
AT&T witnesses’ opinions did not lack foundation simply because they were based on
replacement cost rather than appellant’s proposed used-converter resale market. Their
testimony established that, based on their extensive experience at AT&T, they had
substantial knowledge regarding the cost of acquiring replacement converters compatible
with AT&T’s service trucks. Their opinions bore directly on valuation and concerned a
subject “sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” (Evid. Code, § 801, subd. (a).)
Appellant also asserts that the witnesses’ opinions reflected only what AT&T was
willing to pay for replacement converters, not the converters’ value on the open market.
He emphasizes that the witnesses referred to AT&T’s need to return the service trucks to
operation to prevent further business losses, and to the fact that catalytic converter prices
were elevated during the COVID-19 pandemic because of reduced manufacturing. These
points go to the weight of the valuation testimony, not its foundation or admissibility.
The witnesses did not merely testify to a subjective amount AT&T was willing to pay
regardless of market conditions. Rather, they testified based on their experience
maintaining and repairing AT&T’s fleet vehicles, their familiarity with the cost of
obtaining compatible replacement converters, and the amounts AT&T actually had to pay
to acquire such parts. Evidence that market prices were elevated during the relevant
period did not render the opinions inadmissible or without foundation; it was part of the
market context in which replacement converters had to be obtained. (See People v. Ciani
(1930) 104 Cal.App. 596, 604 [“the value at issue is the market value of the property at
the time and place of the theft”], disapproved on another ground by People v. Perry
(1972) 7 Cal.3d 756, 774 & fn. 8; People v. Siderius (1938) 29 Cal.App.2d 361, 369
[same]; CALCRIM No. 1801.) Nor did AT&T’s operational need to repair its trucks
transform the testimony into evidence of special value to the owner. Those
circumstances were proper subjects for cross-examination and jury evaluation, but they
did not undermine the foundation for the witnesses’ expert valuation opinions.
23.
Accordingly, appellant’s foundational challenge to the valuation opinion testimony is
without merit.
2. The replacement-cost opinion testimony did not involve
inadmissible case-specific hearsay. Any presumed error was
harmless.
Relying on People v. Sanchez, appellant argues the AT&T employees’ valuation
testimony improperly conveyed case-specific hearsay. (People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez).) Specifically, he contends that in offering their valuation
opinions, the employees necessarily relied on and communicated the contents of AT&T’s
vehicle records for the affected service trucks, which were not admitted into evidence.
Hearsay is “evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.
Code, § 1200, subd. (a).) “Documents like letters, reports, and memoranda are often
hearsay because they are prepared by a person outside the courtroom and are usually
offered to prove the truth of the information they contain.” (Sanchez, supra, 63 Cal.4th at
p. 674.) Hearsay is generally inadmissible unless subject to a hearsay exception. (Evid.
Code, § 1200, subd. (b).)
“Experts enjoy wide latitude in the sources they may draw upon, and they are
permitted to rely on hearsay in reaching their conclusions. [Citations.] That is to say,
experts can take hearsay into account when forming their own opinions.” (People v.
Turner (2020) 10 Cal.5th 786, 821, fn. omitted; see Evid. Code, §§ 801, 802.) This
includes testimony, expressed in “general terms,” of “background information regarding
[the expert’s] knowledge and expertise,” even if offered for its truth. (Sanchez, supra,
63 Cal.4th at p. 685.) In Sanchez, however, our Supreme Court clarified that an expert
cannot “relate as true case-specific facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by a hearsay exception.”
(Id. at p. 686.)
24.
Appellant contends the lead investigator’s testimony ran afoul of Sanchez because
the lead investigator attempted to explain that his opinion was based on his review of
AT&T’s service records for the trucks involved in the thefts. The record does not support
the claim. When the lead investigator offered that explanation, without prompting from
the prosecutor, the trial court interjected that the testimony was nonresponsive and
improper, thus precluding the admission of case-specific hearsay. After the court’s
intervention, the lead investigator opined that, based on his experience working for
AT&T, including his investigation of hundreds of catalytic converter thefts, the cost of
acquiring a replacement converter for a service truck was approximately $1,700. That
opinion, grounded in his general knowledge and experience with catalytic converters on
large commercial trucks, did not convey case-specific hearsay.
Appellant’s claim that the associate director’s testimony improperly conveyed
case-specific hearsay is similarly unpersuasive. In describing his background,
experience, and the general basis for his knowledge, the associate director described
AT&T’s process for receiving and reviewing vehicle maintenance and repair records and
invoices for the fleet of approximately 12,000 vehicles he oversaw. Under Sanchez, such
testimony was permissible background evidence offered to explain the witness’s
expertise and the general basis for his opinion, even if it included hearsay. (Sanchez,
supra, 63 Cal.4th at p. 686.) More importantly, the associate director did not convey the
contents of any specific records concerning the affected service trucks. At most, he
testified that he may have reviewed those records, but he also explained that he reviewed
thousands of vehicle records each week, indicating he had no independent recollection of
the particular records. Thus, his opinion rested on his broad experience overseeing the
repair and maintenance of thousands of AT&T vehicles, and not on case-specific hearsay
from records concerning the affected service trucks. Sanchez therefore was not
implicated.
25.
Even assuming the expert testimony of the AT&T employees conveyed case-
specific hearsay, the error was harmless. Appellant does not assert that the vehicle
records at issue were testimonial in nature, and, given that the records were prepared in
the ordinary course of business, we have no basis to conclude that they were. (See
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 324 [business records are
generally nontestimonial because they are “created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some fact at trial”].) Thus, the
presumed error is reviewed under the Watson4 standard, which applies to errors of state
law. (Sanchez, supra, 63 Cal.4th at p. 698 [improper admission of hearsay constitutes
state law error unless the hearsay was testimonial]; see People v. Calhoun (2019)
38 Cal.App.5th 275, 319 [nontestimonial Sanchez error reviewed under Watson].) Under
Watson, reversal is not required unless it is reasonably probable the defendant would
have obtained a more favorable result had the error not occurred. (Watson, supra,
46 Cal.2d at p. 836.)
Here, the record conclusively established that both the lead investigator and the
associate director had substantial experience with replacement catalytic converters, and
that each could offer a well-supported valuation opinion independent of any case-specific
vehicle records. Appellant presented no contrary evidence challenging or undermining
the substance of those opinions. The purported error therefore was unattributable to the
jury’s valuation finding, and there is no reasonable probability appellant would have
obtained a more favorable result absent the challenged testimony. (See Sullivan v.
Louisiana (1993) 508 U.S. 275, 279; Watson, supra, 46 Cal.2d at p. 836.)
4 People v. Watson (1956) 46 Cal.2d 818, 836.
26.
3. Appellant forfeited his claim that the replacement-cost evidence
should have been excluded under Evidence Code section 352. In
any event, the claim fails on the merits.
Lastly, appellant claims that the AT&T employees’ valuation opinion testimony
should have been excluded under Evidence Code section 352.
Evidence Code section 352 allows a trial court to “exclude evidence 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.” The trial court’s exercise of
discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear
abuse of discretion. (People v. Karis (1988) 46 Cal.3d 612, 637.)
Preliminarily, we observe that appellant did not object to the challenged opinion
testimony under Evidence Code section 352. To preserve a claim that the trial court
abused its discretion by failing to exclude evidence on that basis, “ ‘a party must make a
timely and specific objection when the evidence is offered.’ ” (People v. Harrison (2005)
35 Cal.4th 208, 230.) Here, appellant objected to the valuation opinion testimony on
relevance, hearsay, foundation, and personal-knowledge grounds, but not under Evidence
Code section 352. (See People v. Valdez (2012) 55 Cal.4th 82, 138–139 [objection that
evidence was irrelevant or lacked foundation insufficient to preserve Evid. Code, § 352
claim].) At most, in his in limine motion challenging the relevance of evidence of the
cost of acquiring replacement catalytic converters, appellant asserted that admission of
such evidence would “cause confusion at the trial.” But appellant did not specifically cite
Evidence Code section 352, and the context makes clear that his argument was directed
to relevance, not to whether the evidence’s probative value was substantially outweighed
by the danger of confusing the issues or misleading the jury. Appellant therefore
forfeited the instant claim by failing to object at trial.
The claim also fails on the merits. As discussed, evidence of the cost to acquire
comparable replacement catalytic converters was highly probative of fair market value,
27.
given the nature of the stolen property and the circumstances of the thefts. The evidence
posed no danger of confusing the issues or misleading the jury. The trial court therefore
did not abuse its discretion, and we reject this claim.
E. Instructional error did not occur.
Appellant contends the trial court committed instructional error by failing to tell
the jury that fair market value was limited to the stolen property’s value “at the time it
was taken, in the condition it was in,” or that “fair market value was not the replacement
cost of the property.” Consistent with his valuation theory, appellant argues that the
absence of these additional instructions misled the jury into finding him guilty of grand
theft based on the catalytic converters’ replacement cost, rather than their resale value in
used condition.5
“In reviewing a claim that a court’s instructions were incomplete or misleading,
we must independently determine whether there is a reasonable likelihood that the jury
construed or applied the challenged instructions in a manner contrary to law.” (People v.
Parker (2025) 113 Cal.App.5th 1261, 1271.) “ ‘[W]e evaluate the instructions given as a
whole, not in isolation.’ ” (People v. Moore (2011) 51 Cal.4th 1104, 1140.) “We
interpret the instructions so as to support the judgment if they are reasonably susceptible
to such interpretation, and we presume jurors can understand and correlate all instructions
given.” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Appellant’s claim fails because his proposed instructions would have misstated the
law. As explained above, under the circumstances presented here, evidence of the cost to
acquire comparable replacement catalytic converters was competent and relevant
5 Although appellant did not request the proposed instructional language below, we
disagree with respondent that the instructional error claim is forfeited. The valuation of
stolen property bears directly on an element of grand theft. “Instructions regarding the
elements of the crime affect the substantial rights of the defendant, thus requiring no
objection for appellate review.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503; see
§ 1259.)
28.
evidence of fair market value. The jury was not prohibited from considering that
evidence, and an instruction telling it to disregard replacement cost as a measure of value
would have been erroneous. The instructional error claim is without merit.
F. The jury’s findings that each theft count exceeded the $950 threshold
were supported by substantial evidence.
Appellant’s substantial evidence claim likewise rests on his position that the fair
market value of the stolen catalytic converters could only be measured by their used
resale value. He argues that, without the challenged valuation opinions from the AT&T
employees regarding the cost to acquire comparable replacement converters, there was no
evidence the fair market value of the stolen converters exceeded $950.
As explained above, the AT&T employees’ valuation testimony was admissible,
relevant evidence of the fair market value of the catalytic converters. The jury was
entitled to credit that testimony and rely on it in finding that each converter was worth
more than $950. On this record, we conclude a “rational trier of fact could have found
the essential elements” of the grand theft and attempted grand theft charges, and we reject
this claim. (People v. Cardenas (2025) 18 Cal.5th 797, 821.)
II. Appellant’s Challenges to the “Great Monetary Value” Aggravating Factor
Are Without Merit.
As to each of the grand theft and attempted grand theft charges, the jury found true
the allegation that the crimes “involved an attempted or actual taking or damage of great
monetary value.” (Cal. Rules of Court, rule 4.421(a)(9).) Appellant contends these
allegations must be reversed for evidentiary error, instructional error, and insufficient
evidence.
A. Relevant background.
The jury was instructed with CALCRIM No. 3231 (Aggravating Factor: Great
Monetary Value). As given, the instruction provided, in pertinent part:
“To prove this allegation, the People must prove that:
29.
“1. During the commission of the crimes, [appellant] actually took or
attempted to take a catalytic converter … [¶]
“AND
“2. The monetary value of the catalytic convert[er] … was great.
“In determining whether the monetary value was great, you may
consider all evidence presented on the issue of value.
“You may not find the allegation true unless all of you agree that the
People have proved that the item that [appellant] took was of great
monetary value. However, all of you do not need to agree on a specific
monetary value.
“You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.
“You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.”
The parties did not specifically address this aggravating factor in closing
argument.
B. Applicable law.
Section 1170, subdivision (b)(2), provides that a sentencing court may impose a
sentence exceeding them middle term only when “circumstances in aggravation of the
crime” justify imposition of the upper term, and “the facts underlying those
circumstances have been stipulated to by the defendant or have been found true beyond a
reasonable doubt” at a jury or court trial. The “ ‘circumstances in aggravation’ ”
referenced in the statute are the aggravating factors set forth in California Rules of Court,
rule 4.421. (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 75–77.)
California Rules of Court, rule 4.421(a)(9), identifies as an aggravating
circumstance that “[t]he crime involved an attempted or actual taking or damage of great
monetary value.” The rule does not specify a threshold amount or otherwise define
“great monetary value.” However, like all aggravating factors, the great-monetary-value
30.
factor must make the offense “distinctively worse than the ordinary.” (People v. Moreno
(1982) 128 Cal.App.3d 103, 110; see People v. Black (2007) 41 Cal.4th 799, 817,
overruled on another ground by People v. Wiley (2025) 17 Cal.5th 1069, 1076 (Wiley).)
C. The jury’s true findings were based on relevant, admissible evidence and
supported by substantial evidence. Instructional error did not occur.
Appellant’s challenge rests primarily on his assertion that the catalytic converters
could only be valued in their used condition on the resale market, and that the AT&T
employees’ valuation opinions regarding the cost of acquiring comparable replacement
converters were irrelevant and inadmissible. From that premise, he argues that because
there was no competent evidence the value of each catalytic converter exceeded $950,
there was no evidence to support the great-monetary-value aggravating factor.
For the reasons already explained, appellant’s valuation theory is incorrect. The
valuation testimony from the lead investigator and associate director provided ample
evidence from which the jury could find that each catalytic converter had a fair market
value exceeding $1,600. Under the deferential substantial evidence standard, “ ‘viewing
the evidence in the light most favorable to the prosecution,’ ” that evidence supported the
jury’s finding that each theft offense involved the attempted or actual taking of great
monetary value. (People v. Cardenas, supra, 18 Cal.5th at p. 821.) Put differently,
evidence that each theft offense involved property worth more than $1,600, a figure
nearly double the threshold for grand theft, was sufficient for a rational trier of fact to
find the great-monetary-value aggravating factor true beyond a reasonable doubt. (See
ibid.)
Appellant also contends the instruction failed to specify that the jury had to find
that the monetary value of the taking was what made the underlying offense
“distinctively worse.” In appellant’s view, the instruction misled the jury into believing it
could find the aggravating factor true so long as it found both that the value of the stolen
31.
property was “great” and that his conduct was distinctively worse or reprehensible in
some respect unrelated to the monetary value of the property taken.
We are not persuaded. In evaluating a claim of instructional error, we consider the
challenged language in the context of the instruction as a whole (People v. Moore, supra,
51 Cal.4th at p. 1140) and presume jurors are intelligent persons capable of
understanding and correlating all instructions given (People v. Sattiewhite (2014)
59 Cal.4th 446, 475). Here, the requirement that appellant’s conduct be “distinctively
worse than an ordinary commission of the underlying crime” appeared within the
instruction on the great-monetary-value aggravating factor, immediately after the jury
was told it could not find the aggravating factor true unless the item appellant took was of
great monetary value. In that context, there is no reasonable likelihood the jury
misunderstood the instruction as permitting a true finding based on some unspecified
aspect of appellant’s conduct unrelated to the value of the property taken. (See People v.
Parker, supra, 113 Cal.App.5th at p. 1271.) Instructional error did not occur, and this
claim is without merit.
III. Felony Vandalism Does Not Require Proof That the Amount of Damage Was
Reasonably Foreseeable. Instructional Error Did Not Occur.
Vandalism constitutes a felony when the “amount of defacement, damage, or
destruction” is $400 or more. (§ 594, subd. (b)(1).) In this case, the prosecution relied on
evidence of AT&T’s fence-repair costs to establish that the damage in each vandalism
count exceeded the statutory threshold.
Appellant contends the prosecution was also required to prove that the infliction of
damage in excess of the $400 threshold was a reasonably foreseeable consequence of his
conduct, and that the repair costs incurred by AT&T were reasonable under the
circumstances. On that basis, he argues the trial court committed instructional error by
failing to include those asserted requirements in the vandalism instructions.
32.
A. Relevant background.
The trial court instructed the jury on felony vandalism with CALCRIM Nos. 2900
and 2901. As relevant here, the jury was instructed that vandalism required proof
appellant “maliciously damaged real or personal property” he did not own. The jury was
separately instructed that it had to determine whether “the amount of damage caused by
the vandalism in each count was $400 or more.”
The jury was also instructed on the general principles of aiding and abetting under
CALCRIM No. 400, and on aiding and abetting an intended crime under CALCRIM
No. 401. Under CALCRIM No. 401, the jury was instructed that, to find appellant guilty
as an aider and abettor, it had to find he knew the perpetrator intended to commit the
crime, intended to aid and abet the perpetrator in committing the crime, and, by words or
conduct, did in fact aid and abet the perpetrator’s commission of the crime.6
B. Applicable law.
Section 594, subdivision (a), provides: “[e]very person who maliciously [defaces,
damages, or destroys] any real or personal property not his or her own … is guilty of
vandalism.” Vandalism is “a general intent crime with no specific knowledge or mental
state requirement.” (People v. Moore (2018) 19 Cal.App.5th 889, 896.) In other words,
it requires only “a general criminal intent to commit the proscribed act.” (Id. at p. 893.)
Vandalism is punishable as a felony if the amount of “defacement, damage, or
destruction” is $400 or more; otherwise, it is only a misdemeanor. (§ 594, subd. (b)(1),
(2)(A).) Section 594 does not proscribe a specific method for assessing the amount of
damage. However, another panel of this court concluded that the damages requirement
includes the “ ‘ cost of repairing or replacing vandalized property,’ ” so long as there is a
6 Appellant did not object to these instructions. We nevertheless decline to find
forfeiture because, if appellant’s instructional-error claim were correct, the asserted
omission would affect his substantial rights. (See People v. Hillhouse, supra, 27 Cal.4th
at p. 503; § 1259.)
33.
“ ‘ “factual nexus” between the among sought and the evidence of [the defendant’s]
actual conduct.’ ” (People v. Jimenez (2025) 117 Cal.App.5th 602, 609, quoting In re
A.W. (2019) 39 Cal.App.5th 941, 950.)
C. Instructional error did not occur.
Appellant’s instructional-error claim rests on his assertion that the prosecution had
to prove that damage in that amount exceeding the $400 threshold was a reasonably
foreseeable consequence of his criminal conduct. In other words, he contends the
prosecution had to prove not only that he caused the property damage, but also that the
dollar amount of that damage was reasonably foreseeable.
The claim finds no support in the vandalism statute. Section 594 only requires
proof that the “amount of defacement, damage, or destruction” was $400 or more.
(§ 594, subd. (b)(1).) The statute’s plain language does not impose the additional
requirement that the amount of damage be reasonably foreseeable.
Appellant nonetheless asserts that we should read a foreseeability requirement into
the statute based on the rule of lenity and the general principle that punishment should
correspond to culpability. Those principles apply only to resolve ambiguity in the
statutory language, and no such ambiguity exists here. (See People v. Canty (2004)
32 Cal.4th 1266, 1276 [“If the language is clear and unambiguous, we follow the plain
meaning”]; People v. Manzo, supra, 53 Cal.4th at p. 889 [resort to rule of lenity
necessary only to resolve egregious ambiguity].) Inserting a foreseeability requirement
would violate “ ‘the cardinal rule of statutory construction that courts must not add
provisions to statutes.’ ” (People v. Guzman (2005) 35 Cal.4th 577, 587.) We decline to
do so.
Appellant also claims a foreseeability requirement was necessary because the
prosecution proceeded on an aiding and abetting theory as to the vandalism charges. We
disagree. The prosecution proceeded under a direct aiding and abetting theory, which
34.
required proof that appellant acted “with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
Direct aiding and abetting liability applies only to offenses the defendant knowingly and
intentionally aided and abetted, not to unintended but foreseeable offenses.
Foreseeability becomes relevant only when the prosecution proceeds under the natural
and probable consequences doctrine, which extends aider and abettor liability beyond the
intended target offense to any nontarget offense committed by a principal that was a
reasonably foreseeable consequence of the target crime. (People v. Smith (2014)
60 Cal.4th 603, 611.) The prosecution did not proceed under that theory, and the trial
court was not obligated to instruct on it. (See People v. Huynh (2002) 99 Cal.App.4th
662, 667–668 [duty to instruct on natural and probable consequences arises only when
the prosecution elects to rely on that theory and the evidence supports it].)
Lastly, appellant asserts the trial court should have instructed the jury that the
prosecution bore the burden of proving the expenses AT&T incurred to repair the fence
damage were reasonable. He appears to argue that, absent such an instruction, the jury
could have treated the repair costs as dispositive of the damage amount without assessing
whether those costs were excessive or unnecessary.
We see no reasonable likelihood that the jury understood the instructions in that
manner. The costs AT&T incurred to repair the damaged fences were merely evidence of
the amount of damage inflicted, which the jury remained free to accept or reject. The
jury was instructed that it was the sole judge of witness credibility and the weight to be
given to the evidence. (CALCRIM Nos. 200, 226.) Nothing in the instructions given
suggested jury must accept the victim’s repair costs uncritically or preclude it from
considering whether those costs accurately reflected the amount of damage.
Consequently, appellant’s instructional error claims related to the vandalism charges are
without merit.
35.
IV. Appellant Forfeited His Claim That the Trial Court Erroneously Denied His
Request for Funding to Retain an Investigator by Failing to Press for a
Ruling.
Appellant asserts the trial court abused its discretion by denying, or refusing to
consider, his request for funding to hire an investigator, thereby violating his
constitutional right to effective representation. The record, however, does not show that
the request was denied or rejected. When the request was submitted to the court, it was
flagged by the clerk’s office as a potentially improper ex parte communication and placed
in the court file in a sealed envelope. Appellant thereafter took no action to bring the
request to the court’s attention, clarify the nature of his filing, or otherwise obtain a
ruling. His failure to do so forfeited the claim. (See People v. Cunningham (2001) 25
Cal.4th 926, 984 [“failure to press for a ruling waives the issue on appeal”].)
A. Relevant background.
On October 4, 2024, approximately one month before trial, the trial court granted
appellant’s Faretta motion to represent himself. The motion was heard by a judge other
than the judge who ultimately presided over trial. After the court granted the motion,
appellant stated that he had several motions, including a “motion for an investigator.”
The court explained that the motion had to be heard in a different department but allowed
appellant to file it. The court also directed the bailiff to provide appellant with a form
outlining the “rules and policies with respect to court funding.” No further action was
taken on the motion at that hearing. A file-stamped document titled “Motion for
Investigator” appears in the clerk’s transcript on appeal.
Appellant also submitted a separate document, dated October 7, 2024, titled
“Request for Funds for Private Investigator.” The document is not file stamped. In it,
appellant requested funding to hire a specific private investigator to obtain transcripts
from his previous trial for impeachment purposes, serve subpoenas, and “research
comparative pricing on the items stolen and also research their used or fair market value.”
36.
On October 17, 2024, the court sent appellant a letter titled, “Re: Letter submitted
to the Court outside of the presence of all parties ‘Ex Parte Communication.’ ” The
letterhead indicates the letter was from the court executive officer, and it was signed by a
deputy clerk. The letter stated that the court received appellant’s “letter dated
10/17/2024,” and advised that it “is considered ex parte communication and that a review
by the Court without the consent of all parties is prohibited.” The letter further stated that
appellant’s correspondence had been placed in a sealed envelope in the court’s file and
would “only be opened upon request of a party, while in Court, on the record and with
the consent of all the parties.”
There is no subsequent mention in the appellate record of any request by appellant
for investigator funds.
B. Applicable law.
The right to effective representation under the Sixth Amendment of the United
States Constitution and article I, section 15 of the California Constitution encompasses
the right to “reasonably necessary ancillary defense services” provided at public expense.
(Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) The defendant bears the
burden of demonstrating the need for the requested services “by reference to ‘ “the
general lines of inquiry he wishes to pursue, being as specific as possible.” ’ ” (Id. at
p. 320; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1085, disapproved on another
ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) A trial court’s denial of a request
for ancillary defense services is reviewed for abuse of discretion. (Corenevsky, at
p. 321.)
C. The claim is forfeited.
Appellant’s characterization of the court’s letter as either a denial of ancillary
defense services or a refusal to consider his request is unsupported by the record. The
letter did not purport to rule on the request. It instead reflects a clerical procedure
37.
intended to prevent improper judicial consideration of ex parte materials. (See Cal. Code
Jud. Ethics, canon 3B(7) [“A judge shall not initiate, permit, or consider ex parte
communications”].) The request was placed in the court’s file in a sealed envelope,
contingent upon the request being brought to the court’s attention on the record.
Once appellant received the letter from the trial court, it was incumbent upon him
to take some further step to obtain a ruling on the merits, whether by raising the matter in
court, requesting that the sealed envelope be opened under an appropriate procedure, or
otherwise renewing the request. The record contains no indication that appellant did so.
Accordingly, the claim is forfeited because appellant failed to press the matter to a ruling.
(People v. Cunningham, supra, 25 Cal.4th at p. 984; see People v. Valdez, supra,
55 Cal.4th at p. 143 [“Thus, because defendant failed to press the trial court for a ruling
on [the unavailability of a witness], he may not raise the issue on appeal”]; People v.
Lewis (2008) 43 Cal.4th 415, 481 [“Failure to press for a ruling on a motion to exclude
evidence forfeits appellate review of the claim because such failure deprives the trial
court of the opportunity to correct potential error in the first instance”].)
We recognize that requests for ancillary defense services generally should be
considered ex parte to avoid revealing defense strategy. (See People v. Worthy (1980)
109 Cal.App.3d 514, 522, fn. 2; Corenevsky v. Superior Court, supra, 36 Cal.3d at
p. 325.) The record does not reveal why appellant’s request was flagged as a potentially
improper ex parte communication, but it may have been because the request was not
clearly identified as an ex parte application. Even assuming that characterization was
mistaken, however, nothing in the record suggests the error resulted from anything other
than inadvertence. Appellant therefore was required to take reasonable steps to obtain a
ruling. (See People v. Braxton (2004) 34 Cal.4th 798, 813 [where failure to rule results
from inadvertence, defendant must make an appropriate effort to obtain a hearing or
ruling or the claim is forfeited].) Because he failed to bring the request back to the
court’s attention through an appropriate procedure, the claim is forfeited.
38.
V. The Trial Court Did Not Properly Advise Appellant of His Right to a Jury
Trial Before He Admitted the Aggravating Factors Alleged Under California
Rules of Court, Rule 4.421(b)(2) Through (b)(5). We Vacate the True
Findings Based on His Admissions and Remand for Resentencing.
Before the matter was submitted to the jury, appellant admitted the allegations of
circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through
(5). During the admission colloquy, the trial court advised appellant that he only had the
right to a court trial on the truth of the allegations. We agree with appellant that this
advisement was incorrect, and that the record does not establish that his admissions were
knowing, intelligent, and voluntary. We reverse the true findings as to each of the four
aggravating factors, and remand for resentencing.
A. Relevant background.
As pertinent here, the second amended information alleged, as to all counts, the
following circumstances in aggravation: appellant’s “prior convictions … are numerous
and of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)); appellant has
served prior terms in prison (id., rule 4.421(b)(3)); appellant “was on probation [or]
parole” when he committed the alleged offenses (id., rule 4.421(b)(4)); and appellant’s
prior performance on probation and parole was unsatisfactory (id., rule 4.421(b)(5)).
After the close of evidence, the trial court stated appellant indicated off the record
that he wished to admit those four aggravating factors. The court asked appellant
whether he understood that, by admitting the factors, they would not be submitted to the
jury or otherwise decided by the court, and appellant said he understood.
The court then advised appellant: “Now, in regard to these aggravating factors,
you have the right to have a trial. Not by the jury necessarily, because these are factors
dealing with your past. But you have the right to have the Court decide this by a trial.”
The court also informed appellant that he had the right to present a defense to the
aggravating factors, to confront and cross-examine witnesses, to assert the privilege
39.
against self-incrimination, and to remain silent. In response to the court’s questions,
appellant stated that he understood and gave up those rights.
The prosecutor then interjected that the trial court had represented, apparently
during off-the-record discussions, that the aggravating factors “don’t add additional
time.” The court responded, “They are aggravating factors. They don’t carry additional
time.” The prosecutor clarified that the aggravating factors would permit the court to
impose the upper term and noted that the People would seek an upper term at sentencing.
The court replied: “[Appellant] is representing himself. He understands what an
aggravating factor is.”
Appellant then admitted each of the four aggravating factors. The court thereafter
provided this clarification: “[T]he factors in aggravation, they don’t carry additional time
in and of themselves, but they do allow for the Court to aggravate your sentence to the
aggravating term in the Court’s discretion.” After appellant stated he understood, the
court accepted his admissions.
At sentencing, the trial court imposed the upper term on count 1 based upon all the
aggravating factors admitted by appellant and found true by the jury.
B. Applicable law and standard of review.
A criminal defendant has the right to a jury trial on the facts underlying
aggravating factors used to justify imposition of an upper term sentence under
section 1170, subdivision (b). (People v. Lynch (2024) 16 Cal.5th 730, 757.) That right
“is not merely a state law entitlement, but is constitutionally required for all aggravating
facts.” (Wiley, supra, 17 Cal.5th at p. 1078.)
Section 1170, subdivision (b)(3), provides a limited exception for prior
convictions, permitting the court to consider them “based on a certified record of
conviction without submitting the prior convictions to a jury.” Our Supreme Court has
clarified, however, that the exception is narrowly limited to the “bare fact of a prior
40.
conviction and its elements.” (Wiley, supra, 17 Cal.5th at p. 1086, fn. omitted.)
Applying this principle, Wiley held that jury findings were required for aggravating
factors based on increasingly serious prior convictions (Cal. Rules of Court,
rule 4.421(b)(2)) and unsatisfactory prior performance on probation or parole (id.,
rule 4.421(b)(5)). (Wiley, at p. 1082.)
Because the Sixth Amendment affords a defendant the right to a jury trial on
alleged aggravating factors, a valid admission to those factors requires the same
advisements and waivers required for a stipulation to a prior conviction. (People v.
Kinnear (2025) 116 Cal.App.5th 1116, 1127 (Kinnear); see People v. Mitchell (2026)
19 Cal.5th 729, 745–746.) This includes advisement and waiver of the defendant’s
Boykin-Tahl7 rights: the right to a jury trial, the right to confront adverse witnesses, and
the privilege against self-incrimination. (Kinnear, at p. 1127; In re Yurko (1974)
10 Cal.3d 857, 861–863.) A defendant must also be advised of the penal consequences of
the admission. (Kinnear, at p. 1127; People v. Cross (2015) 61 Cal.4th 164, 170.) If the
trial court fails to properly advise the defendant of these rights or consequences, reversal
is required unless the record affirmatively shows, under the totality of the circumstances,
that the admission was knowing, intelligent, and voluntary. (Kinnear, at p. 1123; People
v. Mosby (2004) 33 Cal.4th 353, 361–365; Cross, at pp. 179–180.)
C. The trial court failed to properly advise appellant of his jury trial right.
Respondent concedes that the trial court’s advisement that appellant has a right to
a court trial but “[not] by the jury necessarily” was an incorrect statement of appellant’s
jury trial right. We accept this concession.8 Respondent instead asserts that the record
7 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
8 It is conceivable that one or more of the aggravating factors appellant admitted
could have been established through section 1170, subdivision (b)(3)’s certified-records
exception, in which case no jury determination would have been required as to those
facts. (But see Wiley, supra, 17 Cal.5th at p. 1082.) Given respondent’s concession,
however, we need not decide whether that exception could have applied here or whether
41.
affirmatively demonstrates appellant was aware of, and intelligently waived, his jury trial
right. Respondent notes that appellant expressed his intent to admit the aggravating
factors, and that he had prior experience with and knowledge of the criminal justice
system, having expressed in his Faretta hearing that he previously represented himself in
other criminal matters and has been studying law for the last four years while
incarcerated.
We disagree. Appellant’s prior experience with the criminal justice system may
suggest a greater familiarity with criminal procedure than that of the average layperson.
But such experience is “only relevant where it can be reasonably inferred from the record
that the defendant was adequately advised of his rights in a prior proceeding.” (Kinnear,
supra, 116 Cal.App.5th at p. 1126.) The record provides no basis for such an inference.
Moreover, even if the record supported such an inference, it would not cure the
erroneous advisement in this case. The trial court effectively told appellant that he did
not have a right to a jury trial on the aggravating factors. In light of that misadvisement,
the record does not affirmatively establish that appellant knew he had such a right and
knowingly waived it.
In sum, the trial court did not properly advise appellant of his jury trial right on the
aggravating factors alleged under California Rules of Court, rule 4.421(b)(2) through (5),
and the record does not show a knowing, intelligent, and voluntary waiver of that right.9
We therefore vacate the true findings on those aggravating factors and vacate appellant’s
its potential applicability affected the trial court’s obligation to advise appellant of his
jury trial right.
9 Respondent does not assert that the failure to afford appellant a jury trial was
harmless. (See People v. Lynch, supra, 16 Cal.5th at p. 768 [error is prejudicial unless
appellate court can conclude beyond a reasonable doubt that jury would have found true
all aggravating facts relied on to impose the upper term].)
42.
sentence. The matter is remanded for further proceedings and/or trial on the aggravating
factors, and for resentencing.10
VI. Appellant Was Not Entitled to a Jury Instruction Permitting Aggregation of
His Grand Theft Counts, and He Had No Right to a Jury Trial on the Factual
Findings Relevant to Section 654.
Appellant raises several claims concerning his conviction and sentence on the
multiple theft charges. He contends the trial court erred by failing to instruct the jury that
it could aggregate some or all the grand theft counts, violated his jury trial rights by
deciding the factual questions relevant to section 654, and abused its sentencing
discretion by declining to stay any of the theft offenses under section 654 and imposing
consecutive terms under section 669.
We reject appellant’s instructional and jury-trial claims. But because the matter
must be remanded for resentencing, we need not address his remaining sentencing-
discretion claims.
A. Relevant background.
The second amended information alleged that each of the 73 grand theft counts
and three attempted grand theft counts pertained to the theft or attempted theft of a
catalytic converter from a specific vehicle. Each count identified the particular vehicle
involved by make, model, and license plate number.
Appellant requested that the trial court instruct the jury with CALCRIM No. 1802
(Theft: As Part of Overall Plan), which applies where a grand theft charge is based on the
theory that the aggregate value of property taken in multiple thefts exceeds $950. (See
Bench Notes to CALCRIM No. 1802 [sua sponte duty to instruct if grand theft charged
on aggregation theory].) As relevant here, the pattern instruction provides, to prove
10 A full resentencing is appropriate because part of appellant’s sentence has been
stricken on review, permitting the trial court to exercise its sentencing discretion in light
of the changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.) We express
no opinion on how the trial court should exercise its sentencing discretion on remand.
43.
grand theft under that theory, the People must prove: “1. The defendant committed
multiple thefts of [property]; [¶] 2. The combined value of the [property] was over $950;
[¶] AND [¶] 3. In obtaining the [property], the defendant was motivated by one intention,
one general impulse, and one plan.” (CALCRIM No. 1802.)
At the jury instruction conference, appellant argued CALCRIM No. 1802 must be
given because there was no evidence the thefts were committed pursuant to more than
one intent, impulse, or plan. The trial court disagreed and declined to give the
instruction, reasoning that the prosecution had elected not to “proceed on a theory of
accumulation of thefts to substantiate the grand theft charges.”
At sentencing, appellant argued that section 654, subdivision (a), permitted
punishment for only four grand theft offenses because each of the four theft incidents
involved an indivisible course of conduct undertaken with a single intent to steal multiple
catalytic converters. The trial court rejected the argument and concluded section 654 did
not apply. The court explained that although the offenses involved takings from the same
victim “on four different occasions following the same scheme and pattern,” each offense
“had its own separate requisite act and intent.” The court reasoned that each catalytic
converter was affixed to a separate vehicle, requiring appellant to crawl under each with a
cutting tool and remove the converters one by one. It therefore found that appellant
“deliberately formulated a separate and distinct intent to remove the catalytic converters
from the vehicles, each one at a separate time and independently from each other.”
B. Appellant was not entitled to an instruction permitting the jury to
aggregate multiple grand theft counts into a single count.
Appellant argues the trial court violated due process and committed instructional
error by failing to allow the jury to decide how many theft offenses were committed. He
does not identify a particular pattern instruction or specify the precise instruction the
court should have given but contends the jury should have been permitted to aggregate
44.
some of the charged thefts upon finding they were committed pursuant to a single general
intent or common plan.
Appellant’s argument largely rests on People v. Bailey (1961) 55 Cal.2d 514.
There, the defendant submitted a single fraudulent welfare application and collected a
series of welfare payments. (Id. at pp. 515–518.) Each payment, considered separately,
would have constituted petty theft, but the payments together exceeded the threshold for
grand theft. (Id. at p. 518.) The Supreme Court held that the payments could be
aggregated to support a single grand theft conviction because the takings were “all
motivated by one intention, one general impulse, and one plan.” (Id. at p. 519.)
In the years following Bailey, several appellate decisions construed it as “being a
two-sided coin, granting criminal defendants the right to insist upon the dismissal of all
but one conviction when multiple crimes are unified by a single intent, impulse or plan.”
(People v. Kirvin (2014) 231 Cal.App.4th 1507, 1517.) In People v. Whitmer (2014)
59 Cal.4th 733 (Whitmer), however, the Supreme Court concluded those decisions had
“interpreted Bailey more broadly than warranted.” (Id. at pp. 740–741.) Whitmer
involved 20 grand theft convictions based on 20 fraudulent vehicle sales. (Id. at p. 735.)
Relying on Bailey, the defendant argued he could be convicted of only one count of grand
theft because the thefts were part of a single overarching scheme. (Whitmer, at p. 736.)
The Supreme Court disagreed, holding that “a defendant may be convicted of multiple
counts of grand theft based on separate and distinct acts of theft, even if committed
pursuant to a single overarching scheme.” (Id. at p. 741.)
Whitmer distinguished but did not overrule Bailey. It explained that aggregation
was proper in Bailey because, “[o]ther than omitting to correct the misrepresentation and
accepting the [welfare] payments, the defendant committed no separate and distinct
fraudulent acts.” (Whitmer, supra, 59 Cal.4th at p. 740.) By contrast, the defendant in
Whitmer “committed a series of separate and distinct, although similar, fraudulent acts in
preparing separate paperwork and documentation for each fraudulent transaction.” (Ibid.)
45.
The court therefore concluded that separate grand theft convictions were proper,
reasoning that “a serial thief should not receive a ‘ “felony discount” ’ if the thefts are
separate and distinct even if they are similar.” (Id. at pp. 740–741.)
Appellant does not address Whitmer, but contends the Legislature effectively
codified the expansive construction of Bailey that Whitmer rejected when it amended
section 487 to add subdivision (e). (Assem. Bill No. 2356 (2021–2022 Reg. Sess)
(Stats. 2022, ch. 22, § 1).) Under that provision, where the value of property taken
through “distinct but related acts” exceeds $950, the value of the property “may properly
be aggregated to charge a count of grand theft, if the acts are motivated by one intention,
one general impulse, and one plan.” (§ 487, subd. (e).)
Nothing in the plain language of section 487, subdivision (e) indicates that
aggregation of distinct acts of grand theft into a single charge is mandatory. To the
contrary, the subdivision is permissive. It allows the prosecution to aggregate multiple
related acts of theft to charge a single count of grand theft when the combined value of
the property exceeds $950. It does not require the prosecution to aggregate separate and
distinct grand theft offenses into one charge, nor does it give a defendant the right to
compel that result.11
Appellant further contends the trial court was required to give an aggregation
instruction because a single grand theft count is, in substance, “a lesser included offense
of the charge of more than 70 grand thefts.” He analogizes the proposed aggregation
instruction to a lesser-included-offense instruction, arguing it was necessary to avoid an
improper all-or-nothing choice between the charged offenses and acquittal. (See People
11 Even if we look beyond the statute’s unambiguous text, the legislative history
confirms the same conclusion. In adding section 487, subdivision (e), the Legislature
expressed its intent to codify Bailey’s limited aggregation principle by expressly giving
prosecutors discretion to aggregate several related acts of petty theft into one grand theft
charge. (Assem. Com. On Public Safety, Analysis of Assem. Bill No. 3256 (2021–2022
Reg. Sess) Apr. 10, 2022, pp. 2–3.)
46.
v. Birks (1998) 19 Cal.4th 108, 119 (Birks).) According to appellant, without such an
instruction, the jury could not return what he views as the appropriate middle-ground
verdict: four grand theft convictions, one for each theft incident.
Appellant cites no authority applying the lesser-included-offense doctrine to
require an instruction permitting the jury to aggregate separately charged theft counts into
a single offense, and we are aware of none. In any event, the analogy fails. A lesser
offense is necessarily included only if the greater offense cannot be committed without
also committing the lesser offense. (Birks, supra, 19 Cal.4th at p. 117.) That principle
does not apply here. Four aggregated grand theft counts—one for each theft incident—
were not lesser included offenses of the 73 vehicle-specific grand theft counts charged in
the information. Each charged count alleged a separate taking of a catalytic converter
from a specifically identified vehicle. By contrast, appellant’s proposed instruction
would have required the jury to regroup the separately charged takings by incident,
aggregate the value of the converters within each group, and treat each incident as a
single grand theft. That is not a lesser included offense; it is an alternative charging
theory. The prosecution elected not to proceed on an aggregation theory, and Whitmer
makes clear it was not required to do so.
If anything, appellant’s proposed aggregation instruction was more akin to an
instruction on an uncharged lesser related offense because it would have allowed the jury
to convict appellant of fewer counts than alleged under a theory the prosecution did not
charge. The Supreme Court has rejected a defendant’s unilateral right to instructions on
lesser related offenses, in part because such instructions would “interfere with
prosecutorial charging discretion, essentially allowing the defendant, not the prosecutor,
to choose which charges are presented to the jury for decision.” (People v. Hicks (2017)
4 Cal.5th 203, 211; see Birks, supra, 19 Cal.4th at pp. 134–136.)
A trial court’s sua sponte instructional duty extends to “general principles of law
relevant to the issues raised by the evidence and necessary for the jury’s understanding of
47.
the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.) Appellant has not shown the
trial court failed in that duty. Consistent with Whitmer, the prosecution properly charged
each separate and distinct taking of a catalytic converter from a separate vehicle as its
own grand theft count, and the jury was instructed on those charged offenses. No
additional instruction was required to permit the jury to aggregate counts under a theory
the prosecution did not elect and appellant could not compel. Accordingly, the
instructional error claim is without merit.
C. Appellant was not entitled to a jury trial on whether the theft offenses
were committed as part of the same act or pursuant to the same intent or
objective.
Relatedly, appellant asserts that the factual question of whether his theft offenses
were committed pursuant to more than one criminal act or intent should have been
submitted to the jury because it affected his sentencing exposure under section 654. He
relies on the Sixth Amendment principle, set forth in Apprendi v. New Jersey and its
progeny, that, with limited exceptions, “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi); accord, Erlinger v. United States (2024) 602 U.S. 821, 834 (Erlinger).)
According to appellant, the section 654 factual findings were subject to that principle
because they “had the effect of altering [his] maximum authorized sentencing exposure.”
Section 654, subdivision (a), provides that “[a]n act or omission that is punishable
in different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision.” “Whether a defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory reference to an ‘act or
omission’ may include not only a discrete physical act but also a course of conduct
encompassing several acts pursued with a single objective.” (People v. Corpening (2016)
48.
2 Cal.5th 307, 311.) A defendant may be separately punished for offenses committed in
pursuit of independent criminal objectives, even if the offenses share common acts or are
part of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d
625, 639.)
The applicability of section 654 is “a question of fact for the trial court.” (People
v. Buchanan (2016) 248 Cal.App.4th 603, 611; see People v. Jackson (2016) 1 Cal.5th
269, 354 [“Intent and objective are factual questions for the trial court”].) When
section 654 prohibits multiple punishment, the court must impose sentence on the
affected count but stay execution of the duplicative sentence. (People v. Duff (2010)
50 Cal.4th 787, 796; People v. Sanders (2012) 55 Cal.4th 731, 743.)
California courts have uniformly held that Apprendi is inapplicable to judicial fact
finding under section 654. (People v. Carter (2019) 34 Cal.App.5th 831, 845–846 [“it is
well settled that the Sixth Amendment right to a jury trial does not apply to trial court
findings under section 654”]; People v. Deegan (2016) 247 Cal.App.4th 532, 546–550;
People v. Morelos (2008) 168 Cal.App.4th 758, 770; People v. Solis (2001)
90 Cal.App.4th 1002, 1021–1022; People v. Cleveland (2001) 87 Cal.App.4th 263, 268–
271.) As these authorities explain, section 654 does not implicate Apprendi because
“[t]he question of whether [it] operates to ‘stay’ a particular sentence does not involve the
determination of any fact that could increase the penalty for a crime beyond the
prescribed statutory maximum for the underlying crime.” (Cleveland, at p. 266; see
Carter, at p. 846; Solis, at pp. 1021–1022.) This is because section 654 is a “sentencing
‘reduction’ statute,” not a “sentencing ‘enhancement.’ ” (Cleveland, at p. 270; see
Carter, at p. 846; Solis, at pp. 1021–1022.) Section 654 does not increase the punishment
authorized by the jury’s verdicts but instead operates only to limit punishment that would
otherwise lawfully be imposed for the offenses of which the defendant was convicted.
(Carter, at pp. 843–844; Deegan, at p. 547; Cleveland, at p. 270.) Once the jury returns
guilty verdicts on multiple counts, those verdicts authorize the court to impose the
49.
statutorily prescribed sentence for each offense. (Cleveland, at pp. 270–271; Carter, at
pp. 845–846) Thus, a judicial determination that section 654 is inapplicable does not
increase the sentence beyond the statutory maximum authorized by the verdicts; it merely
leaves intact the punishment the verdicts already permit. (Carter, at pp. 843–844; Solis,
at pp. 1021–1022; Cleveland, at pp. 270–271.)
Appellant broadly asserts that any pre-Erlinger authority holding that section 654
factual findings are for the trial court are no longer good law. We are not persuaded.
Erlinger addressed the relationship between Apprendi’s jury trial guarantee and the prior-
conviction exception announced in Almendarez-Torres v. United States (1998) 523 U.S.
224. (Erlinger, supra, 602 U.S. at pp. 836–838.) The court held that, under the Armed
Career Criminal Act of 1984, when an enhanced sentence depends on whether the
defendant sustained three or more qualifying convictions committed on different
occasions (18 U.S.C. § 924(e)(1)), that separate-occasions determination must be made
by a jury. (Erlinger, at p. 835.) Erlinger thus addressed a distinct sentencing-
enhancement issue, and nothing in its reasoning suggests that Apprendi applies to
section 654’s limitation on multiple punishment. Accordingly, we conclude that
appellant was not entitled to a jury determination of whether section 654 applies to his
theft convictions, and we reject this claim.
D. Because appellant must be resentenced, we need not consider his claims
that the trial court abused its discretion in finding section 654
inapplicable and in imposing consecutive sentences.
Lastly, appellant contends that the trial court abused its discretion in declining to
stay sentence on the majority of his grand theft and attempted grand theft convictions
under section 654, and in imposing consecutive sentences under section 669. We need
not address these challenges to the trial court’s exercise of its sentencing discretion
because the matter must be remanded for a full resentencing. (See People v. Valenzuela
(2019) 7 Cal.5th 415, 425 [“A court conducting a full resentencing also may, as
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appropriate, revisit sentencing choices such as a decision to stay a sentence … or to
impose concurrent instead of consecutive sentences”].) We express no view as to how
the trial court should exercise its discretion on remand.
VII. Because the Matter Must Be Remanded for Resentencing, We Need Not
Address the Parties’ Claims Concerning Appellant’s Out-of-County
Sentences and Custody Credits.
A. The trial court must resentence appellant on all matters and pronounce a
single aggregate term under section 1170.1, subdivision (a).
At sentencing, the trial court was tasked with resentencing appellant on all
previously imposed judgments. (See § 1170.1, subd. (a).) Appellant contends, and
respondent agrees, that various errors occurred in the resentencing of these matters.
Because we have already concluded the matter must be remanded for a full resentencing,
we need not address those claims in this appeal.
1. Relevant background.
a. Sacramento County case (20FE008303).
On December 19, 2022, appellant pled no contest to one count of grand theft
(§ 487, subd. (a)) in Sacramento County Superior Court. On February 15, 2023, the court
imposed the lower term of 16 months under section 1170, subdivision (h), and ordered
appellant to serve a split sentence consisting of eight months in county jail followed by
eight months of mandatory supervision. Appellant was deemed to have satisfied the
custodial portion of the sentence by credit for time served.
b. Amador County case (21CR30403-01).
On December 6, 2022, a jury in Amador County Superior Court convicted
appellant of 27 counts of grand theft (§ 487, subd. (a)), one count of felony vandalism
(§ 594, subd. (b)(1)), and two counts of misdemeanor petty theft (§ 484, subd. (a)). The
trial court sentenced appellant to a total determinate term of 12 years pursuant to
section 1170, subdivision (h). The sentence consisted of the middle term of two years on
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one of the grand theft counts, plus consecutive eight-month terms on 15 other felony
counts. As to the Sacramento County grand theft case, the court imposed one-third the
middle term, or eight months, deemed appellant to have satisfied that term by credit for
time served, and terminated mandatory supervision.
c. Fresno County case (F021903486).
On March 14, 2024, a jury in Fresno County Superior Court convicted appellant of
grand theft (§ 487, subd. (a)) and attempted grand theft (§§ 664, subd. (a), 487, subd. (a)).
On May 10, 2024, the trial court sentenced appellant to an aggregate determinate term of
14 years on the Fresno County and Amador County cases, split between 10 years in
custody and four years of mandatory supervision. (See § 1170, subd. (h).) The court
selected the Fresno County grand theft count as the principal term and imposed the upper
term of three years, plus a consecutive four-month term for attempted grand theft. It also
ordered the previously imposed sentence in Amador County to run consecutively, adding
10 years eight months to the aggregate term through consecutive one-third middle terms
of eight months on each of the 16 felony counts. The court further determined that
appellant did not need to be resentenced in the Sacramento County case because he had
received credit for time served and mandatory supervision had been terminated.
d. Amador County appeal and resentencing.
On June 27, 2024, the Third District Court of Appeal reversed the 27 grand theft
convictions in the Amador County case for evidentiary error and remanded for possible
retrial and resentencing. (People v. Pelton (June 27, 2024, C098246) [nonpub. opn.].)
Several months after the remittitur issued, appellant moved to dismiss the reversed counts
for violation of his statutory speedy trial rights under section 1382, subdivision (a)(2).
At a hearing on January 17, 2025, the day after appellant was sentenced in the
instant matter in Tulare County, the Amador County Superior Court granted appellant’s
motion to dismiss the grand theft counts. Appellant was not personally present, and his
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attorney appeared on his behalf pursuant to section 977. After granting the motion, the
court and the parties agreed to proceed with resentencing on the remaining counts in the
Amador County case only, then forward a copy of the minute order and abstract of
judgment to the Tulare County Superior Court. Appellant’s counsel waived appellant’s
personal appearance based on appellant’s agreement. The court then resentenced
appellant to the middle term of two years on the felony vandalism count and concurrent
six-month terms on each misdemeanor petty theft count.
e. Sentencing proceedings in the instant case.
As detailed above, at the January 16, 2025, sentencing hearing in the instant
matter, the trial court imposed a determinate term of 15 years pursuant to section 1170,
subdivision (h), on the Tulare County convictions. As to the Fresno County sentence, the
court imposed consecutive terms of eight months on the grand theft conviction and four
months on the attempted grand theft conviction. As to the Amador County sentence, the
court imposed a consecutive term of eight months on the remaining felony vandalism
conviction and added no additional time for the misdemeanor petty thefts. As to the
Sacramento County case, the court imposed concurrent term of 16 months.
Nothing in the record on appeal indicates that the trial court revisited appellant’s
sentence after he was resentenced in Amador County on January 17, 2025.
2. Applicable law.
Section 1170.1 “ ‘generally governs the calculation and imposition of a
determinate sentence when a defendant has been convicted of more than one felony
offense.’ ” (People v. Sasser (2015) 61 Cal.4th 1, 8–9.) Section 1170.1, subdivision (a)
sets forth the methodology for imposing “multiple consecutive determinate terms,”
irrespective of whether the terms arose from the same or different proceedings. (In re
Reeves (2005) 35 Cal.4th 765, 773; see Sasser, at p. 8; People v. Felix (2000) 22 Cal.4th
651, 655.) “[T]he aggregate term of imprisonment … shall be the sum of the principal
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term, the subordinate term, and any additional term imposed for applicable
enhancements.” (§ 1170.1, subd. (a).) “[T]he term with the longest sentence is the
‘principal term’; any term consecutive to the principal term is a ‘subordinate term.’
(§ 1170.1, subd. (a).) The court imposes the full term, either lower, middle, or upper, for
the principal term. However, … the court imposes only ‘one-third of the middle term’
for subordinate terms.’ (Ibid.)” (Felix, at p. 655.)
If a determinate term is imposed consecutive to a determinate term imposed
previously in a different proceeding, the second sentencing court “must designate the
longest single term as the principal term, which may displace a previously designated
principal term.” (In re Rodriguez (2021) 66 Cal.App.5th 952, 961; see Cal. Rules of
Court, rule 4.452(a).) Thus, in this circumstance, “the second court is empowered to
modify a sentence previously imposed by a different court and make it subordinate to the
later-imposed term.” (People v. Baker (2002) 144 Cal.App.4th 1320, 1329.) However,
the second court cannot disturb the discretionary sentencing choices of the first
sentencing court, such as “the decision to impose [the lower, middle, or upper term],
making counts in prior cases concurrent with or consecutive to each other, or … striking
the punishment for an enhancement.” (Cal. Rules of Court, rule 4.452(c); see In re
Reeves, supra, 35 Cal.4th at p. 773; Rodriguez, at p. 960.) “This limitation reflects, in
part, the common law rule that a court loses jurisdiction to resentence a defendant once
execution of the sentence has begun.” (Rodriguez, at p. 960.)
3. The parties may raise the issues identified here in the trial court
on remand.
Appellant raises several claims related to resentencing on the previously imposed
out-of-county judgments. With respect to the Sacramento County case, appellant
contends the trial court lacked jurisdiction to resentence him because his sentence was
completed when mandatory supervision was terminated. As to the Amador County case,
he argues the court lacked jurisdiction to impose sentence because the judgment had been
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vacated on appeal and sentence had not yet been imposed following issuance of the
remittitur to the Amador County Superior Court. He also highlights that when he was
ultimately resentenced in Amador County the day after sentence was imposed in the
instant matter, the Amador County court imposed sentence only in that case, rather than
resentencing appellant on all matters and imposing a single aggregate term. (See Cal.
Rules of Court, rule 4.452(a).)
Respondent likewise identifies several purported sentencing errors involving the
out-of-county matters. As to the Sacramento County case, respondent asserts that the
trial court’s imposition of a 16-month sentence was inconsistent with the Sacramento
County Superior Court’s earlier imposition of a split sentence. Respondent also agrees
with appellant that the trial court’s imposition of sentence on the Amador County case
appears to have been unlawful because appellant had not yet been resentenced in Amador
County Superior Court following issuance of the remittitur in that case.
As noted, we need not resolve these claims because we have already concluded the
matter must be remanded for a full resentencing. At the resentencing hearing, the trial
court must resentence appellant on all preexisting judgments properly before it and
impose a single aggregate term in accordance with section 1170.1, subdivision (a), and
California Rules of Court, rule 4.452. On remand, the parties may raise the issues
identified above in the trial court.
B. The trial court must recalculate custody credits at resentencing.
The parties also agree that the trial court committed various errors in calculating
and awarding custody credits. Because the matter must be remanded for a full
resentencing involving both the instant case and the previously imposed out-of-county
judgments, we need not address those claims here. On remand, the trial court must
recalculate and award all applicable custody credits in the first instance. (See People v.
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Buckhalter (2001) 26 Cal.4th 20, 23; People v. Rojas (2023) 95 Cal.App.5th 48, 54–55.)
The parties may address the asserted custody-credit issues at the resentencing hearing.
VIII. Appellant’s Victim Restitution and Related Due Process Claims Are Without
Merit.
At sentencing, appellant stipulated to the requested direct victim restitution
amount of $132,993.68. He now contends that, under Ellingburg v. United States (2026)
607 U.S. 163 (Ellingburg), direct victim restitution imposed under section 1202.4,
subdivision (f), constitutes criminal punishment. On that basis, he argues that, under
Apprendi, he was entitled to a jury determination of the amount of restitution, along with
the full panoply of associated trial rights, none of which he expressly waived.12 He
further asserts that the denial of his postconviction request for discovery of the invoices
for the replacement catalytic converters acquired by AT&T for the affected vehicles
12 Appellant also attempts to challenge, on the same basis, the restitution order
entered in the Fresno County case after a contested hearing. That order is not before us.
It was entered in a separate criminal proceeding and is outside the scope of this appeal.
(See People v. Mendez (1999) 19 Cal.4th 1084, 1094 [a timely notice of appeal, as a
general matter, is essential to appellate jurisdiction]; see also Polster, Inc. v. Swing
(1985) 164 Cal.App.3d 427, 436 [“Our jurisdiction on appeal is limited in scope to the
notice of appeal and the judgment or order appealed from”].)
Although we granted appellant’s motion to construe the notice of appeal to
encompass the “concurrent resentencing of appellant” in the Fresno County, Amador
County, and Sacramento County cases, we specified that review of those matters was
“limited to resentencing only.” Notably, appellant’s motion did not specify that he
sought to challenge the Fresno County restitution order. Rather, he argued that
clarification of the scope of the appeal was necessary to ensure he could challenge
apparent errors in the imposition of the aggregate determinate sentence and the
calculation of custody credits.
The Fresno County Superior Court’s restitution determination was not part of, and
was not affected by, the Tulare County Superior Court’s resentencing of the out-of-
county cases for the purpose of imposing a single aggregate term. (See § 1170.1,
subd. (a); Cal. Rules of Court, rule 4.452(a).) Because neither the notice of appeal nor
our order construing it encompassed the Fresno County restitution order, that order falls
outside the scope of this appeal, and we do not consider appellant’s challenges to it.
56.
violated his right to due process. He also claims that documents produced by AT&T in
support of their restitution claim suggest that the evidence supporting several of the
counts was unreliable and warrant reversal.
A. Relevant background.
Before sentencing, AT&T’s lead investigator prepared a spreadsheet detailing the
losses and damages incurred as a result of appellant’s offenses. A copy of the
spreadsheet was submitted with the probation report and the prosecutor’s sentencing
brief.
The spreadsheet itemized the specific losses associated with each of the 80 counts.
For the theft and attempted theft counts, it distinguished between the cost of acquiring a
replacement catalytic converter for each vehicle and the additional costs of materials and
mechanic labor for installation. The lead investigator noted that the restitution request
excluded productivity losses and the resulting impact on customers.
At the sentencing hearing, the trial court advised appellant that the probation
department recommended restitution in the full amount requested. Appellant responded,
“I’ll agree to that amount.” The court then ordered appellant to pay $132,993.68 in direct
victim restitution to AT&T. The court also reimposed the previously ordered direct
victim restitution award from the Fresno case in the amount of $236,031.44.
B. Applicable law – direct victim restitution (§ 1202.4, subd. (f)).
In virtually every criminal case “in which a victim has suffered economic loss as a
result of the defendant’s conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by court order, based on the
amount of loss claimed by the victim or victims or any other showing to the court.”
(§ 1202.4, subd. (f); see Cal. Const., art. I, § 28, subd. (b)(13)(B) [“Restitution shall be
ordered from the convicted wrongdoer in every case … in which a crime victim suffers a
loss”].) The restitution order “shall be of a dollar amount that is sufficient to fully
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reimburse the victim or victims for every determined economic loss incurred as the result
of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).)
A defendant has “the right to a hearing before a judge to dispute the determination
of the amount of restitution.” (§ 1202.4, subd. (f)(1).) The amount of restitution need
only be proved by a preponderance of the evidence. (People v. Holmberg (2011)
195 Cal.App.4th 1310, 1319; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
Section 1202.4 does not require any particular type of proof, and the trial court may rely
on a probation report containing the victim’s statement of loss as prima facie evidence.
(Gemelli, at p. 1543.) Once the victim makes that prima facie showing, the burden shifts
to the defendant to disprove the claimed amount. (Ibid.; People v. Keichler (2005)
129 Cal.App.4th 1039, 1048.) In fixing the restitution amount, the trial court has broad
discretion to employ any rational method reasonably calculated to make the victim
whole, provided the amount ordered has a factual and rational basis. (People v. Giordano
(2007) 42 Cal.4th 644, 663–664; Gemelli, at p. 1542.)
Because a restitution hearing is part of the sentencing process, it does not require
the evidentiary formalities applicable at trial, and the court is not confined by the
ordinary rules of evidence. (People v. Prosser (2007) 157 Cal.App.4th 682, 692; People
v. Cain (2000) 82 Cal.App.4th 81, 87–88 (Cain); People v. Foster (1993) 14 Cal.App.4th
939, 947.) Nor does a defendant have “state or a federal constitutional right to cross-
examine” witnesses at a restitution hearing. (Cain, at p. 87.) A defendant’s due process
rights in this context are “very limited,” though due process is violated if the procedures
are “fundamentally unfair.” (Id. at pp. 86, 87.)
C. Appellant was not entitled to a jury trial on the amount of victim
restitution.
Appellant asserts that, in light of Ellingburg, California direct restitution orders
constitute criminal penalties and any judicial factfinding regarding restitution violates
Apprendi. In appellant’s view, he was entitled to a jury trial on the amount of restitution,
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as well as the full panoply of associated constitutional trial rights, including proof beyond
a reasonable doubt and the right to confront and cross-examine adverse witnesses. He
therefore claims that his stipulation to the restitution amount was invalid because the trial
court did not advise him of those rights or obtain a valid waiver.13 (See People v. French
(2008) 43 Cal.4th 36, 47 [where jury trial right is guaranteed by the federal Constitution,
express waiver is required].) He also contends the asserted error was prejudicial.
As detailed above, Apprendi requires that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490; accord, Erlinger,
supra, 602 U.S. at p. 834.) The Apprendi rule also applies to the imposition of criminal
fines. (Southern Union Company v. United States (2012) 567 U.S. 343, 346.)
California courts have consistently held that direct restitution under
section 1202.4, subdivision (f), does not implicate Apprendi because it is not a criminal
penalty. (People v. Millard (2009) 175 Cal.App.4th 7, 35; People v. Chappelone (2010)
183 Cal.App.4th 1159, 1184; People v. Pangan (2013) 213 Cal.App.4th 574, 585; People
v. Wasbotten (2014) 225 Cal.App.4th 306, 308–309; People v. Foalima (2015)
239 Cal.App.4th 1376, 1398; see People v. Kopp (2025) 19 Cal.5th 1, 15, fn. omitted
[“ ‘An order of restitution to a victim is not a penal consequence’ ”].) These authorities
explain that the primary purpose of victim restitution is to compensate victims for losses
caused by criminal conduct and to provide an expedited substitute for a separate civil
action. (Millard, at p. 35; Pangan, at p. 585; Foalima, at p. 1376.) Indeed, “the
restitution statute itself characterizes victim restitution awards as civil.” (Pangan, at
p. 585, citing § 1202.4, subd. (a)(3)(B) [direct victim restitution “shall be enforceable as
if the order were a civil judgment”]; see People v. Harvest (2000) 84 Cal.App.4th 641,
13 We disagree with respondent that appellant forfeited his Apprendi claim by failing
to object below or by stipulating to the restitution amount. The challenge rests on a
purported subsequent change in law. (See People v. Perez (2020) 9 Cal.5th 1, 10.)
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649 [statutory language demonstrates “the Legislature intended victim restitution as a
civil remedy rather than as a criminal punishment”].) This compensatory purpose is
further reflected in the manner direct restitution is calculated. Restitution is paid to the
victim in an amount sufficient to reimburse economic losses caused by the defendant’s
criminal conduct; it is not based on the degree of punishment warranted by the offense.
(§ 1202.4, subd. (f), (3); see Millard, at p. 35 [“ ‘Compensation is the defining feature of
civil law’ ”].) Although direct restitution may also serve the secondary goals of
rehabilitation and deterrence, those incidental purposes do not transform the
compensatory obligation into an additional criminal penalty. (Millard, at pp. 35–36; see
People v. Holman (2013) 214 Cal.App.4th 1438, 1451–1452.) For these reasons, judicial
determination of the amount of direct restitution does not increase the defendant’s
criminal punishment and therefore does not require a jury finding. (Millard, at pp. 35–
36; Chappelone, at p. 1184; Pangan, at pp. 585–586; Foalima, at pp. 1398–1399.)
Appellant contends the foregoing authorities have been undermined by Ellingburg,
which held that restitution imposed under the Mandatory Victims Restitution Act of 1996
(18 U.S.C. § 3663A) constitutes criminal punishment for purposes of the ex post facto
clause. (Ellingburg, supra, 607 U.S. at p. 165.) We are not persuaded. Ellingburg
addressed a distinct constitutional question under a different restitution statute. It did not
consider the issue presented here: whether the Sixth Amendment requires a jury to
determine the amount of restitution imposed under section 1202.4, subdivision (f).
Ellingburg therefore does not abrogate the extensive California authority that Apprendi is
inapplicable to judicial determinations of direct victim restitution. (See People v. Ault
(2004) 33 Cal.4th 1250, 1269, fn. 10 [“It is axiomatic that cases are not authority for
propositions not considered”].)
Based on the above, appellant’s claim that he was entitled to a jury trial and
associated trial rights on the amount of direct victim restitution is without merit. We
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therefore reject his assertion that his agreement to the restitution amount was invalid
because the trial court failed to advise him of those rights and obtain a valid waiver.14
D. Appellant’s related discovery and due process claims are without merit.
Apart from his Apprendi claim, appellant asserts that the denial of his
postconviction discovery motion violated his right to due process because it denied him
the opportunity to meaningfully challenge AT&T’s restitution claim.
Prior to sentencing, appellant filed a “Request for Continuing Discovery,” seeking,
inter alia, invoices for the replacement catalytic converters purchased by AT&T. In the
motion, appellant asserted that he had done research on the price of comparable catalytic
converters and had been in contact with one of AT&T’s vendors, which gave him reason
to believe the actual replacement cost was less than $950. He requested the court “order
the prosecution to supply the invoices,” or allow him to subpoena the records directly.
The People responded in their sentencing brief that appellant was “provided with
all discovery in the prosecution’s possession.” At the sentencing hearing, the parties
submitted on their briefs, and the trial court denied the discovery motion without
explanation.
Appellant argues that the denial of the discovery motion rendered the restitution
proceedings fundamentally unfair. Appellant did not object on this ground below but
instead stipulated to the restitution amount in lieu of a restitution hearing. Accordingly,
the claim is forfeited. (See People v. Thompson (2022) 83 Cal.App.5th 69, 117–118
[defendant forfeited challenge to restitution order by failing to request a hearing]; see also
14 In his reply brief, appellant contends that because resentencing is otherwise
required, he should be allowed on remand to relitigate the restitution orders in both the
Tulare County and Fresno County cases. We disagree. The purpose of the “ ‘full
resentencing rule’ ” is to allow a resentencing court to “consider ‘any pertinent
circumstances which have arisen since the prior sentence was imposed.’ ” (People v.
Buycks, supra, 5 Cal.5th at p. 893.) Appellant identifies no authority suggesting the rule
permits relitigation of restitution orders unaffected by the basis for remand.
61.
People v. Trujillo (2015) 60 Cal.4th 850, 856 [constitutional rights may be forfeited by
failure to make a timely objection].)
Further, appellant fails to establish the prosecution was in possession of the
records he sought. (Cf. § 1054.1 [prosecution’s statutory discovery obligation extends
only to materials in the possession of the prosecution or investigating agencies]; In re
Steele (2004) 32 Cal.4th 682, 697 [prosecutor’s constitutional obligation under Brady v.
Maryland15 to disclose exculpatory evidence extends only to materials actually or
constructively in possession of the prosecution team].) The prosecution asserted that it
had provided appellant with all discovery in its possession. The trial court accepted that
representation, and nothing in the record suggests otherwise.
In any event, appellant has not shown he was entitled to the requested invoices.
Any right to restitution-related discovery instead derives from the limited due process
protections applicable to restitution proceedings. (People v. Marrero (2021)
60 Cal.App.5th 896, 911–912.) “ ‘The scope of a criminal defendant’s due process rights
at a hearing to determine the amount of restitution is very limited: “ ‘A defendant’s due
process rights are protected when the probation report gives notice of the amount of
restitution claimed … , and the defendant has an opportunity to challenge the figures in
the probation report at the sentencing hearing.’ ” ’ ” (Id. at p. 911.)
Had appellant elected to proceed to a restitution hearing, he would have had the
opportunity to present affirmative evidence challenging AT&T’s restitution claim. (See
Cain, supra, 82 Cal.App.4th at p. 87.) He has not shown that the requested invoices were
necessary to mount an effective challenge. The invoices were purportedly sought to
contest AT&T’s asserted replacement costs for the stolen catalytic converters, but the
general cost of replacement converters had already been established at trial, and the jury
necessarily found beyond a reasonable doubt that each stolen converter exceeded the
15 Brady v. Maryland (1963) 373 U.S. 83.
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$950 grand-theft threshold. On this record, the denial of appellant’s postconviction
discovery request did not render the restitution procedure fundamentally unfair.
Appellant further claims the denial of his discovery request prevented him from
obtaining “compelling evidence” that would have supported a new trial motion. He
points to several apparent inconsistencies between the spreadsheet AT&T’s lead
investigator provided for restitution purposes and the evidence presented at trial. These
inconsistencies include notations in the spreadsheet that AT&T’s records reflected that
one count of attempted grand theft was actually a completed theft (count 21), one count
of grand theft was actually attempted grand theft (count 32), that AT&T has no record of
one of the grand theft counts (count 24), and that one of the vehicles alleged to have been
affected was likely confused with a different vehicle (count 56). Appellant asserts these
discrepancies are serious enough to call into question not only the affected counts, but the
reliability of the prosecution’s case as a whole.
Appellant does not clearly identify the source of the asserted discovery obligation
as it pertains to obtaining materials for purposes of a new trial motion. But whether
framed as a statutory discovery claim or a Brady claim, the obligation extends only to
materials actually or constructively possessed by the prosecution or investigating
agencies. (See § 1054.1; In re Steele, supra, 32 Cal.4th at p. 697.) Nothing in the record
indicates the AT&T invoices were in the possession of the prosecution team. To the
contrary, appellant’s request that the court either order the prosecution to produce the
records or permit him to subpoena them indicates he had no specific basis to believe the
prosecution possessed the records. His remedy was to seek the records directly from
AT&T by subpoena duces tecum, which he did not do. (See Kling v. Superior Court
(2010) 50 Cal.4th 1068, 1074.) Thus, on this record, appellant has not shown a discovery
violation or a related denial of due process.
Finally, to the extent appellant asks this court to reverse some or all of his
convictions based on discrepancies between the spreadsheet prepared for the restitution
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hearing and the evidence at trial, the claim is not cognizable on direct appeal. (See
People v. Pena (1972) 25 Cal.App.3d 414, 421–422, disapproved on another ground in
People v. Duran (1976) 16 Cal.3d 282, 292.) Such claims, which depend on evidence
outside the trial record or newly discovered after trial, must be raised by petition for writ
of habeas corpus.16 (§ 1473, subd. (b)(1)(C).)
IX. Cumulative Error.
Appellant raises a claim of cumulative error. He contends that, based on the
totality of some of the errors identified above, he suffered a fundamentally unfair trial.
We disagree.
“Under the ‘cumulative error’ doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th
694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People
v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received
a fair trial. (Ibid.)
We reject appellant’s claim of cumulative error because we have denied all his
individual claims. (See People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative
prejudice argument rejected because each individual contention lacked merit or did not
result in prejudice].) Taking all of appellant’s claims into account, we are satisfied that
he received a fair adjudication.
16 We observe, however, that each of the 76 grand theft and attempted grand theft
counts was supported by trial testimony identifying the specific vehicle involved, often
with photographs, as either missing its catalytic converter or having cuts to the exhaust
system consistent with an attempted theft. The fact that a spreadsheet prepared for
restitution purposes, and not itself admissible at trial, appears to conflict with some of the
jury’s findings does not, without more, give us reason to question the reliability of the
evidence on which the verdicts were based.
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DISPOSITION
The true findings based on appellant’s admissions to the aggravating factors
alleged under California Rules of Court, rule 4.421(b)(2) through (5), are vacated.
Appellant’s sentence is vacated, and the matter is remanded for resentencing. On
remand, the prosecution may elect, but is not required, to further litigate the truth of the
aggravating factors or to proceed to trial on those allegations. At resentencing, the trial
court shall conduct a full resentencing on all matters properly before it and shall calculate
all applicable custody credits. Following resentencing, the court shall forward a new
indeterminate abstract of judgment to the appropriate authorities. In all other respects,
appellant’s judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
DETJEN, J.
SANDHU, J.
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