Filed 2/6/13 P. v. Turner
CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JUNIUS
MACARTHUR TURNER,
Defendant and Appellant.
B238590
(Los Angeles County
Super. Ct. No. YA080522)
APPEAL from a judgment of the Superior Court of
County, Steven R. Van Sicklen, Judge. Affirmed.
Sara Richland, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie A. Miyoshi and William N. Frank, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted defendant Junius
MacArthur Turner of one count of grand
theft (Pen. Code, § 487, subd. (a))
and found true the allegation that he was on bail in an unrelated case (§
12022.1). The trial court sentenced him
to state prison for a total term of four years.
He appeals from the judgment of
conviction, contending that the evidence is insufficient to prove that
value of the items taken exceeded $950, and that therefore his conviction of
grand theft must be set aside. We affirm
the judgment.
BACKGROUND
Defendant worked at a UPS facility,
where he loaded packages. On January
12, 2011, as
defendant was screened with a metal-detecting wand by security guard Gabriel
Padilla prior to leaving work, the metal detector sounded. Padilla asked defendant to remove his
jacket. Defendant said it was the
buttons on his jacket and tried to continue to exit. Padilla followed, and defendant turned back
into the UPS facility. Padilla saw
defendant drop five white cell phones to the ground. Padilla picked them up and escorted defendant
to the security office. Padilla
summoned, among others, defendant’s supervisor, Kerwin Sampson. When Padilla left to call the police, leaving
Sampson and defendant alone in the office, defendant gave Sampson five more
phones, all black in color.
name="_ftnref2" title="">[2] Shown a photograph depicting the ten phones,
Trevor Gresham, a sales representative for T-Mobile, testified that all the
phones were T-Mobile My Touch 4G phones which had a retail value of $400 each
if new, $100 to $200 if refurbished, and $50 if refurbished and discounted
pursuant to a contract rate plan.
As necessary, we discuss additional
evidence below in our Discussion.
DISCUSSION
As here relevant, grand theft requires
that the “personal property taken is of a value exceeding nine hundred fifty
dollars ($950).†(§ 487, subd.
(a).) Defendant contends that the
evidence is insufficient to prove that he took property exceeding $950 in
value, and that therefore his conviction of grand theft must be vacated. His contention has three primary
strands: (1) the evidence was
insufficient to prove that he stole ten rather than only nine phones; (2)
Trevor Gresham was not qualified to opine on the value of the phones and gave
no basis for his opinion, and (3) even if Gresham’s opinion testimony proved
the value of the phones, each phone may have been worth only $50, and therefore
the evidence did not prove the total value of the phones taken to be more than
$950.
Of course, we review the evidence in
the light most favorable to the judgment, presuming in support thereof all
reasonable inferences that can be drawn from the evidence. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
As to the number of phones defendant
took, Gabriel Padilla testified that he saw defendant drop five white cell
phones to the ground. Padilla picked
them up, escorted defendant to Padilla’s office, and placed the white phones on
top of his desk. He then summoned
defendant’s supervisor, Kerwin Sampson, as well as another supervisor and a
union representative. Later, he stepped
out to call the police, leaving Sampson alone in the office with
defendant.
At that time, according to Sampson,
defendant removed either four or five additional cell phones (Sampson was not
sure of the number) from his clothing.
The phones were black.
Padilla testified that when he
returned, Sampson and defendant were still in his office, and Padilla observed
additional phones, all of which were black, on top of a shelf. The phones had not been there previously.
Shown a photograph depicting ten cell
phones (People’s Exh. No. 12) in two rows, Padilla testified that the top row
contained the five white phones that he saw defendant drop. The other five phones were the black phones
he had observed upon returning to his office after calling the police.
Sampson recalled that a photograph was
taken of the phones defendant gave him.
When shown People’s Exhibit No. 12, he testified that it showed “the
phones in question.†He then
explained: “To be certain, I don’t know
exactly which phones . . . that were disclosed and I don’t know which phones
were previously disclosed,†obviously referring to the phones defendant gave
him (the “phones . . . that were disclosedâ€) and the phones Padilla saw
defendant drop (the “phones [which] were previously disclosedâ€), but he added
that “[t]hese are the phones in question.
This is the photo that was taken of the phones.†He then answered “Yes†when asked if People’s
Exhibit No. 12 was the photograph “taken of the phones from [Padilla’s] office
that night.†With regard to the bottom
row of five phones in the photograph, he testified that he “recall[ed] these
phones at the bottom,†and he recognized that they were on “the security office’s
desk,†referring to Padilla’s office desk.
Viewing the evidence in the light most
favorable to the judgment, Sampson and Padilla’s testimony was more than
sufficient to prove that defendant stole 10 phones in all (the five white ones
Padilla recovered after he dropped them and the five black ones defendant gave
to Sampson), and that those ten phones were depicted in People’s Exhibit No.
12. Only by an entirely unreasonable
parsing of Sampson’s testimony, without reference to Padilla’s, can defendant contend otherwise.
Defendant contends that Trevor
Gresham’s testimony did not provide substantial evidence to prove the value of
each phone. He is incorrect.
Gresham was a retail sales leader for
T-Mobile. He testified that he had
worked for the company for about two-and-a-half years, and had received
training (both in orientation and while on the job) in the various products
T-Mobile has. He identified the phones
shown in People’s Exhibit No. 12 as My Touch 4G phones. The retail price of such phones, sold new, is
approximately $400. Asked about
refurbished phones, he testified that if purchased on the internet, a
refurbished phone would “probably [cost] like anywhere between $100 to
$200.†If purchased pursuant to a
discount as part of a contract plan, a refurbished phone would probably cost
$50.
To the extent defendant contends on
appeal that Gresham was not qualified to opine on the value of the phones and
provided no adequate reasons for his opinions, he has forfeited the contention
by failing to object in the trial court.
(People v. Gutierrez (2002) 28
Cal.4th 1083, 1140.) Moreover, “‘“[i]t
is settled law that incompetent testimony, such as hearsay or conclusion, if
received without objection takes on the attributes of competent proof when
considered upon the question of sufficiency of the evidence to support a
finding.â€â€™ [Citations.]†(People
v. Panah (2005) 35 Cal.4th 395, 476.)
In any event, viewing the evidence under the proper standard on appeal,
it may reasonably be inferred that Gresham’s position as a retail sales leader,
and his training over two-and-a-half years of employment regarding T-Mobile
phones, adequately qualified him to give an opinion on the value of such
phones, new and refurbished. In addition,
to the extent defendant complains that Gresham was incompetent to testify about
the value of refurbished phones because he testified that sales representatives
“don’t’ sell refurbished phones,†the contention is disingenuous. It was defendant’s trial attorney, not the
prosecution, that sought to, and did, elicit the testimony regarding the value
of refurbished phones.
In short,
defendant has no legitimate basis on appeal to contend that Gresham’s testimony
was insufficient to prove the value of the phones he stole.
Assuming Gresham’s testimony proved
the value of the phones, defendant contends that there was no evidence that the
phones were new, that they might have been refurbished, and that therefore
there was no substantial evidence that any phone defendant stole was worth more
than $50 or $100. Because defendant
asserts that the evidence showed at best that he took only nine phones, he
argues that the aggregate value of the phones does not exceed $950.
We have already rejected defendant’s
contention that he stole only nine, rather than ten, phones. Moreover, the value of stolen property is the
fair market value, that is, the “‘[h]ighest price’ . . . in terms of what the
articles would be sold for in the open market if neither buyer nor seller was
under any urgent necessity to either buy or sell them. If some
stores would underprice the items or would give them away that would not be
representative of the fair market value.â€
(People v. Pena (1977) 68
Cal.App.3d 100, 103, italics added.)
Here, even if all of the ten phones
defendant stole were refurbished, each was worth (according to Gresham’s
testimony) at least $100 to $200. Only
if they were discounted pursuant to a contract plan would they be worth less,
i.e., $50. But such a discount pursuant
to a provider service contract does not reflect fair market value for the phone
alone. Thus, given that defendant stole
10 phones, each (even if refurbished) worth at least $100, and given that
individual items taken as part of a single offense may be added together to
determine whether the offense constitutes grand theft (People v. Gray (1976) 65 Cal.App.3d 220, 226), the evidence was
clearly sufficient to prove that defendant stole property exceeding $950 in
value.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.
section references are to the Penal Code.
contends that the evidence is insufficient to prove that he gave Sampson five
phones. As we explain in our Discussion,
he is incorrect.
