P. v. Llamas
Filed 7/18/13 P. v. Llamas CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE LLAMAS,
Defendant and Appellant.
B238029
(Los Angeles
County
Super. Ct.
No. BA371036)
APPEAL from
a judgment of the Superior Court
of
County, William N. Sterling, Judge. Reversed in part, remanded, and affirmed in
part.
Elana
Goldstein, 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, James William Bilderback II
and Alene M. Games, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Jose
Llamas appeals his convictions for first
degree burglary, misdemeanor petty theft, and grand theft. The trial court sentenced him to a term of 17
years in prison pursuant to the Three Strikes law. Llamas contends the court abused its
discretion by failing to conduct a second competency hearing, and the evidence
was insufficient to support the grand theft charge. We reverse Llamas’s conviction for grand
theft and remand for further proceedings on that charge. In all other respects, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
Viewed in accordance with the usual rules governing appellate
review (People v. Johnston (2003) 113
Cal.App.4th 1299, 1303-1304; People v.
Robinson (1997) 53 Cal.App.4th 270, 273), the evidence relevant to the
issues presented on appeal established the following. On the afternoon of May 5, 2010, Llamas, Mark Figueroa, and Hector Cruz entered a
gated parking garage at the Evo apartment complex located at 1155 South Grand Avenue in Los Angeles. The men stole two bicycles which had been
locked to a bike rack in the garage, using bolt cutters and/or a hacksaw to cut
through the locks. Alerted to the
burglary-in-progress by an employee, apartment personnel and officers from the
Business Improvement District’s bicycle patrol unit apprehended the trio. Figueroa was caught in the garage, holding
one of the bicycles; Cruz was stopped as he attempted to flee from the garage;
and Llamas was apprehended after a brief chase out of the garage and through adjoining
streets. During the chase, Llamas
dropped a backpack, which contained bolt cutters and a hacksaw.
John Park, the owner of one of the
bicycles, testified that he had purchased his bike three to four years
previously for approximately $450.
Matthew Ryder, the owner of another one of the bicycles, testified that
he had purchased his bike from a friend six months previously for approximately
$450. However, based on his own
research, he believed the true value of the bike was between $1,000 and $1,300.
2.
Procedure.
Trial was by jury.
Llamas was convicted of first degree burglary (Pen. Code, § 459);
misdemeanor petty theft of Park’s bicycle, a lesser included offense to the
grand theft charged in count 2 (§ 484, subd. (a)); and grand theft of Ryder’s
bicycle (§ 487, subd. (a)). In a
bifurcated proceeding, the trial court found Llamas had suffered a prior
conviction for rape by means of force or violence (§ 261, subd. (a)(2)), a
“strike†and a serious felony. (§§ 667,
subds. (a), (b)-(i) & 1170.12, subds. (a)-(d).) The trial court denied Llamas’s
and sentenced him to a term of 17 years in prison pursuant to the Three Strikes
law. It imposed a restitution fine, a
suspended parole restitution fine, court security assessments, and criminal
conviction assessments. Llamas appeals.
DISCUSSION
1.
The trial court did not abuse its
discretion by failing to declare a doubt and suspend proceedings pending a
second competency hearing.
a.
Additional facts.
Prior to trial, Llamas was examined
by two mental health professionals, Dr. Jack Rothberg and Dr. Haig
Kojian. In a report dated July 7, 2010,
Dr. Rothberg found Llamas was “marginally†competent to stand trial. Dr. Rothman explained that Llamas had
“emotional difficulties†going back to 2006, when he was suicidal. In 2007 he began hearing voices and had
paranoid ideas. He had been medicated
for his psychiatric problems. Llamas’s
“fund of knowledge, ability to abstract and general intellectual functioningâ€
were “grossly impaired.†Dr. Rothberg
concluded Llamas suffered from a “developmental delay, possibly mental
retardation,†as well as paranoid schizophrenia. He nonetheless had a rudimentary
understanding of the nature and purpose of trial proceedings and a limited
capacity to assist counsel in preparing his defense. The report concluded that Llamas was
“competent to stand trial albeit very marginally so. He will need a great deal of support to get
through the proceedings. . . .
He has obviously been through the criminal justice system on many
previous occasions. He certainly should
be maintained on anti-psychotic medication to at least prevent psychosis from
further hampering his competency, but at this point I believe he can proceed to
trial.â€
In a report dated September 25, 2010,
Dr. Kojian examined Llamas at the request of Llamas’s attorney, and concluded
Llamas was incompetent to stand trial.
Llamas told Dr. Kojian that he heard voices when he was falling
asleep at night. He had used
methamphetamine on a daily basis for years.
He had previously used PCP, “ ‘crack,’ †and heroin as
well. Jail mental health records showed
Llamas had been diagnosed with psychosis; had been observed talking to himself;
had admitted experiencing auditory hallucinations; was mildly depressed; and
had been placed on several psychotropic medications. He did not demonstrate any acute symptoms of
psychosis at the time of the Kojian evaluation.
His interview responses suggested cognitive deficits or lower
intellectual functioning.
Llamas was aware he had been
charged with burglary for stealing a bike; that felonies were more serious than
misdemeanors; and that his attorney’s duty was to assist him and attempt to
obtain his release from custody. He
understood the meaning of a plea bargain and the concepts of guilt and
innocence. Nonetheless, Dr. Kojian was
“concerned by a number of the statements [Llamas] made during the interview,â€
including that his lawyer was working on his behalf, but “also on the side of
the judge and policeâ€; he did not understand the district attorney’s duty or
function; he made unclear statements about “people sitting at two desks and
making decisions or talking†during trial; he did not understand the function
of the jury; and he was confused about the testimony his father could give at
trial. Dr. Kojian was also concerned
that Llamas did not believe his medications were helpful. The report concluded: “it does appear . . . that [Llamas] should be
considered incompetent to proceed at this time†and would benefit from a restoration
to competency program.
On September 27, 2010, the trial
court declared a doubt as to Llamas’s mental competency and suspended criminal
proceedings. On December 1, 2010, the
court found Llamas incompetent to stand trial, based on Dr. Kojian’s report. It ordered Llamas committed to Patton State
Hospital until his competency could be restored.
In a report dated February 2, 2011,
Patton State Hospital’s Wellness and Recovery Team reported that Llamas was
making progress and was compliant with his treatment and medication regimen,
but was not yet competent to stand trial and should be retained for further
treatment. Llamas continued to
experience delusions and was unable to discuss the evidence of the crime in a
“linear and rational manner.†His relationship
with his attorney was “greatly tinted by paranoid delusions and expectations
not grounded in reality and logic.†His
understanding of the charges and of possible sentence was impacted by
“grandiose and persecutory delusions.â€
In a report dated June 8, 2011, the
Wellness and Recovery Team concluded Llamas was competent and could be returned
to court to stand trial. Llamas had
“responded well to treatment. His target
symptoms are voices, substance-abuse issues, depression, antisocial personality
and a learning disability. He has
gradually become clearer, coherent, organized, responsive, and well
groomed. Mr. Llamas was not seen
responding to internal stimuli although he self reports that he continues to
hear voices.†Llamas still had
“substance-abuse behaviors†and had tested positive for cannabis use while
hospitalized. Llamas “continue[d] to
present with antisocial personality traits,†including “[f]ailure to conform to
social norms with respect to lawful behaviors as indicated by performing acts
that are grounds for arrest; deceitfulness as indicated by repeated lying;
impulsivity; irresponsibility; and lack of remorse. . . . Cognitively, he demonstrates an adequate
level of functioning. Clinically,
however, Mr. Llamas has demonstrated clarity of thought and unimpaired
cognitive capacity.†He was “cooperative
with the unit routine; however, he continues to have periods where he is
defiant, does not follow through with staff direction, and challenges authority.†He was considered to be able to cooperate
with his attorney and discuss the evidence surrounding his charges in a logical
and coherent manner.
On June 23, 2011, Llamas returned
to court. Defense counsel suggested
Llamas might still be incompetent.
Counsel explained: “I just spoke to
him. He’s still acting awfully strange,
so I’m not certain I can submit on the report.â€
At counsel’s request, the trial court continued the matter. Defense counsel suggested, “Maybe I can get
another doctor to look at him, get a final determination.â€
On July 25, 2011, both the
prosecutor and defense counsel submitted on the certification notice from
Patton State Hospital, and criminal proceedings were reinstated.
On September 23, 2011, before
opening statements, the bailiff informed the trial court that Llamas was
refusing to get dressed. Defense counsel
informed the court: “[T]his morning I’ve
had two conversation[s with] Mr. Llamas.
He’s refusing to not only get dressed but also to come out into the
courtroom and he expressed repeatedly he was hearing voices and pacing and
started saying I was against him and developed some sort of conspiracy. [¶]
When I was waiting to be let into the courtroom, I could hear him talking
to himself in a loud manner. He is a
Patton return. So Patton had cleared him.
This was markedly different than the last two days we’ve had him and the day
before we sent the case here.â€
The trial court then conducted
proceedings in lock up in order to evaluate Llamas. The following colloquy transpired:
“[Defense counsel]: Mr. Llamas, . . . . the reason we’re here is
we’re trying to determine whether you’re okay to go to trial. When I say ‘okay,’ I mean are you competent?
“[Llamas]: Yeah.
But you’re the one that the—I fucking don’t understand what’s going on. You fucking with me.
“[Defense counsel]: Well, that’s a different issue, if you just
think I’m the problem. But I’m more
concerned with whether you are competent to—this morning, you told me you’re hearing
voices and that you did not want to come out and the voices were telling you
things. And it was much worse this
morning than it was at the last couple of days; is that right?
“[Llamas]: Yeah.
“[Defense counsel]: So what I’m trying to determine is whether
these voices that you’re hearing—because I heard you were talking to yourself. Were you talking—responding to the voices? Is that why you were talking?
“[Llamas]: I been hearing it since—fucking years.
“[Defense counsel]: It was worse today than—
“[Llamas]: I’ll be okay in 20 minutes, man.
“[Defense counsel]: Just 20 minutes. Are you ready to go to trial?
“[Llamas]: I’m not going out there with those
people. You have to kick those people
out.
“[Defense counsel]: Those are our jurors, Mr. Llamas. I’m afraid those are the people we’re going
to have for the trial.
“[Llamas]: The ones you fucking picked. I already told you I know where you’re
at. And I don’t know what your guy’s
doing. Stupid, you know, what I mean.
“[The Court]: Stop for a second. [¶] I
see no indication that the defendant is incompetent. He appears rational, and he may be
dissatisfied. But there’s no indication
that he doesn’t know what’s going on; so I’m going to advise that we will
proceed to trial. If Mr. Llamas refuses
to come out, we will go to trial regardless, and I will advise the jury that
the defendant has voluntarily absented himself.
We’re going to leave.
“[Llamas]: I’ll tell you, you have to fix that little
problem I already told you about.
“[The Court]: We’re going to stop for a second. The court reporter and I are going to
leave. And I’m going to leave you here
to talk to [defense counsel]. But I’m
advising you that I see no indication that you are not competent.
“[Llamas]: I’m not—(unintelligible)—telling you that shit, man.
“[The Court] Hang on.
“[Llamas]: The fucking thing is this fucking guy right
here for a whole fucking year been on my back.
He does—I
don’t want to deal with this guy no more.
“[The Court]: We have the jury out there, and we’re about
to start trial. If you don’t come out,
the jury will be told you’re refusing and voluntarily absenting yourself.
“[Llamas]: I don’t know what the fuck you’re talking
about.â€
Thereafter, Llamas was present in
court for opening statements. Llamas did
not engage in any outbursts or disruptive behavior during trial, and defense
counsel did not renew his concerns about Llamas’s mental state or request that
proceedings be suspended.
b.
Applicable legal principles.
Llamas asserts that the trial
court’s failure to declare a doubt and suspend proceedings a second time was an
abuse of discretion. We disagree.
Both the due process clause of the
prohibit the trial of a criminal defendant while he or she is mentally
incompetent. (People v. Elliott (2012) 53 Cal.4th 535, 582; People v. Lewis (2008) 43 Cal.4th 415, 524; People v. Murdoch (2011) 194 Cal.App.4th 230, 236; § 1367, subd.
(a).) A defendant is deemed competent
only if he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding, and has a rational and factual
understanding of the proceedings against him.
(People v. Ary (2011) 51
Cal.4th 510, 517; Elliott,
(a).) “The focus of the inquiry is the defendant’s
mental capacity to understand the nature and purpose of the proceedings against
him or her. [Citations.]†(People
v. Blair (2005) 36 Cal.4th 686, 711.)
A defendant is presumed competent unless it is proved otherwise by a
preponderance of the evidence. (
507; Ary, at p. 518; § 1369, subd. (f).) The defendant has the burden of establishing
lack of competence. (
at p. 518)
A trial judge must “suspend
proceedings and conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand
trial. [Citations.]†(People
v. Blair, supra, 36 Cal.4th at p. 711; § 1368, subd. (a);
517; People v. Ramos, supra, 34 Cal.4th
at p. 507; People v. Murdoch, supra, 194
Cal.App.4th at p. 236.) Evidence of
incompetence may emanate from several sources, including the defendant’s
demeanor, irrational behavior, and prior mental evaluations. To be entitled to a competency hearing, a
defendant must exhibit more than a preexisting psychiatric condition that has
little bearing on the question of whether he can assist his defense
counsel. (People v. Rogers (2006) 39 Cal.4th 826, 847.) Counsel’s opinion that
the defendant is incompetent, although entitled to some weight, does not compel
the court to order a competency hearing.
(People v. Lewis, supra, 43
Cal.4th at p. 525; Blair, at
p. 719; People v. Panah (2005)
35 Cal.4th 395, 433.)
The court’s duty to conduct a
competency hearing may arise at any time prior to judgment. (People
v. Rogers, supra, 39 Cal.4th at p. 847.)
“ ‘ “When a competency hearing has already been held and
defendant has been found competent to stand trial, . . . a trial court need not suspend proceedings to
conduct a second competency hearing unless it ‘is presented with a substantial
change of circumstances or with new evidence’ casting a serious doubt on the
validity of that finding.
[Citations.]†’ †(
864; People v. Kelly (1992) 1 Cal.4th
495, 542; People v. Lawley (2002) 27
Cal.4th 102, 136.)
Failure to declare a doubt and to
conduct a competency hearing when there is substantial evidence of incompetence
requires reversal of the judgment. (
hold a competence hearing is entitled to deference, because the court has the
opportunity to observe the defendant during trial.†(Rogers,
matter of law, the evidence raised a reasonable doubt as to defendant’s mental
competence, we may consider all the relevant facts in the record.†(People
v. Young (2005) 34 Cal.4th 1149, 1217.)
c.
Application here.
In support of his argument that a
second competence hearing was required, Llamas points to his refusal to change
into trial attire; his “irrational behaviorâ€; his comments that, inter alia, he
did not know what was going on, did not know what the judge was talking about,
and did not wish to enter the courtroom with jurors; his report of hearing
voices; the absence of any evidence he had taken his medication; and defense
counsel’s report that Llamas appeared to believe defense counsel was conspiring
against him. Coupled with the prior
incompetency finding and his history of mental illness, Llamas urges, these
facts amounted to substantial evidence requiring the court to suspend
proceedings and order a second competency hearing.
The evidence Llamas points to does
not, in our view, constitute a substantial change of circumstances, or new
evidence casting serious doubt on the Patton State Hospital competence
finding. (See People v. Taylor, supra, 47 Cal.4th at p. 864.) Llamas was still hearing voices at the time
the hospital team concluded he was competent; therefore this circumstance did
not demonstrate he had decompensated.
His prior psychiatric and drug abuse history was obviously not new
evidence, as it was known and taken into consideration by the hospital
team. Moreover, “even a history of
serious mental illness does not necessarily constitute substantial evidence of
incompetence . . . .†(
714; People v. Ramos, supra, 34
Cal.4th at p. 508.) Given that Llamas
bore the burden to show incompetence, the mere absence of evidence he had taken
his medication at the commencement of the trial is not enough to demonstrate
changed circumstances. Llamas’s refusal
to dress for trial, belligerent manner, and refusal to enter the courtroom may
well have indicated nothing more than defiance, a failure to conform to social
norms, and a challenge to authority—all problems extant when the competency
finding was made. To raise a doubt as to
competence, a defendant must exhibit more than “bizarre, paranoid behavior,
strange words, or a preexisting psychiatric condition that has little bearing
on the question of whether the defendant can assist his defense counsel,†or
statements of defense counsel that defendant is incapable of cooperating in his
defense. (Ramos, at p. 508; People
v. Ramirez (2006) 39 Cal.4th 398, 431; People
v. Lewis, supra, 43 Cal.4th at p. 524; see generally
1041, 1064 [defendant’s rambling, marginally relevant speeches, even if
evidence of some form of mental illness, did not show he lacked understanding
of proceedings or ability to assist in the defense];
203 [defendant’s agitation and apparent willingness to speak out in front of
the jury “f[e]ll far short
of indicating a deteriorating mental stateâ€].)
Further, Llamas’s comment that he was
“not going out there with those people†did not necessarily indicate a lack of
understanding of the jury’s role. When
defense counsel explained that “those people†were jurors, Llamas replied, “The
ones you fucking picked,†indicating he understood counsel’s role in jury
selection. Although defense counsel
stated that Llamas had “developed some sort of conspiracy†theory, counsel’s
statements were nonspecific, and the trial court interpreted Llamas’s remarks
as evidence of dissatisfaction with counsel, rather than evidence in a belief
in a conspiracy or a deteriorating mental state. The court’s conclusion was not
unreasonable. (See People v. Welch (1999) 20 Cal.4th 701, 742 [facts that defendant
and his counsel did not agree on which defense to employ, defendant had a
paranoid distrust of the judicial system, and stated his counsel was in league
with the prosecution, “while suggesting the trial court could have ordered a hearing on competence to stand trial, do not
establish that the trial court abused its
discretion in failing to do soâ€].)
“[A] reviewing court generally gives great deference to a trial court’s
decision whether to hold a competency hearing. . . . ‘ “An appellate court is in no position
to appraise a defendant’s conduct in the trial court as indicating insanity, a
calculated attempt to feign insanity and delay the proceedings, or sheer
temper.†’ [Citations.]†(People
v. Marshall (1997) 15 Cal.4th 1, 33.)
People
v. Murdoch, supra,
two doctors appointed to evaluate the defendant found he suffered from a
severe mental illness, but was competent when taking his prescribed
medications. However, he had been
refusing to take his medications. Both
doctors opined that if he continued to refuse medication, he could become
incompetent. (Id. at p. 233.) The
trial court found him competent, reinstated criminal proceedings, and two
months later granted his self-representation request. Prior to opening statements, Murdoch told the
court his defense to felony assault charges was that the victim and a witness
were not human, but were angelic beings.
(Id. at pp. 233-234.) Because such beings lacked shoulder blades,
he explained, he planned to ask them to shrug at trial to demonstrate their
true nature. (Id. at p. 234) On
cross-examination, Murdoch asked the victim a single question: “ ‘Can you
shrug your shoulders like this?’ â€
(Id. at p. 235.) Murdoch was convicted. On appeal, Murdoch concluded that the trial court erred by failing to conduct
a competency hearing. (
about his unusual defense “may not have compelled institution of competency
proceedings.†(Id. at p. 236.) However,
this evidence, when coupled with the psychiatric reports indicating his
competence was “fragile,†that he had stopped taking his medication, and that
he might decompensate if unmedicated, “provide[d] the substantial evidence
necessary to demonstrate a reasonable doubt as to whether he had in fact
decompensated and become incompetent as the experts had warned.†(Id. at
pp. 236-238.) Here, in contrast to
had ceased taking medication, resulting in his decompensation, nor did Llamas
display the kind of wildly delusional thinking that demonstrated Murdoch’s loss
of competence.
2. Sufficiency
of the evidence to prove grand theft.
The jury found Llamas guilty of
grand theft (§ 487) in count 3, for the theft of Ryder’s bicycle. The jury was instructed that Llamas
“committed grand theft if he stole property worth more than $400.â€
Prior to January 1, 2011, section
487, subdivision (a) provided that a defendant committed grand theft if he or
she stole property worth more than $400.
(See Stats. 2009-2010 (2010 3d Ex. Sess.) ch. 28, § 17.) Effective January 1, 2011, after the date
Llamas committed the offenses, the Legislature amended section 487, subdivision
(a) to define grand theft as the taking of property worth more than $950. (Stats. 2010 (2010 Reg. Sess.) ch. 693,
§ 1; People v
be applied retroactively to Llamas. The
concession is appropriate. The
Legislature may amend a criminal statute to diminish punishment when, in its
judgment, a lesser penalty “is sufficient to meet the legitimate ends of the
criminal law.†(In re Estrada (1965) 63 Cal.2d 740, 745.) There is a “reasonable presumption that a
legislative act mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments.â€
(People v. Brown (2012) 54
Cal.4th 314, 324.) Absent indicia of a
contrary legislative intent, courts retroactively apply amendments that reduce
punishment. (People v. Nasalga (1996) 12 Cal.4th 784, 793.)
Applying these principles, Wade concluded the amendment to section 487 should be applied
retroactively. Wade explained:
“ ‘[W]here the amendatory statute mitigates punishment and there is
no saving clause, the rule is that the amendment will operate retroactively so
that the lighter punishment is imposed.’ â€
(People v. Wade,
consistent with the Legislature’s intent to save the Department of Corrections
money by adjusting property crimes for inflation. (Ibid.) Wade therefore
concluded the amendment applied retroactively.
(Id. at p. 1152.) We agree with Wade’s analysis and adopt it here.
Because the jury was misinstructed that theft of items
over $400 constituted grand theft, Llamas’s conviction on count 3 cannot
stand. (See § 1157 [trier of fact
must determine the degree of the crime]; People
v. Love (2008) 166 Cal.App.4th 1292, 1300-1301.) The People argue that the matter should be
remanded to the trial court to give them the opportunity to retry the charge if
the prosecutor so elects. (See
at p. 1153, fn. 5 [because there was
sufficient evidence to establish grand theft on a valid theory, the People were
entitled to retry the defendant]; People
v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 [where amendment to
statute to add additional element to an offense was applied retroactively to
the defendant, allowing the prosecution an opportunity to establish the
additional element on remand was not barred by the double jeopardy clause or ex
post facto principles].) Llamas contends
that retrial on the grand theft charge is prohibited because the People’s
evidence was insufficient to prove the property value was over $950. He urges that instead, the conviction should
be reduced to petty theft. (See
§ 1260; People v. Navarro (2007)
40 Cal.4th 668, 677-678; People v.
Simpson (1938) 26 Cal.App.2d 223, 229-230.)
First, even if the evidence was insufficient, that
fact would not necessarily bar remand for retrial. “Where . . . evidence is not introduced at
trial because the law at that time would have rendered it irrelevant, the
remand to prove that element is proper and the reviewing court does not treat
the issue as one of sufficiency of the evidence.†(People
v. Figueroa, supra, 20 Cal.App.4th at p. 72.) In any event, the record discloses that
sufficient, though not necessarily dispositive, evidence was presented on the
issue. When determining whether the
evidence was sufficient, “we review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible and of solid value—from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]†(
People v. Carrington (2009)
47 Cal.4th 145, 186-187.) We
presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence.
(People v. Medina (2009) 46
Cal.4th 913, 919.)
To determine the value of stolen property for purposes
of section 487, “the reasonable and fair market value shall be the test.†(§ 484, subd. (a); CALCRIM
No. 1801.) The fair market value is
generally the price the item would bring in an open market between a willing
buyer and seller. (People v. Pena (1977) 68 Cal.App.3d 100, 102-104.) “Put another way, ‘fair market value’ means
the highest price obtainable in the market place rather than the lowest price
or the average price.†(
time and place of its theft. (
1801.) An item’s owner is competent to
testify to its value. (Evid. Code, § 813,
subd. (a)(1); People v. Coleman (1963)
222 Cal.App.2d 358, 361.)
Here, Ryder, the owner of the bicycle—a red Trek 7.6
FX hybrid—testified that he purchased it from a friend in December 2009 for
$450. The friend was “looking to upgrade
his current bike and buy a new one. So
he gave [Ryder] a good deal . . . .†The prosecutor asked Ryder if he had
determined what the value of the bike was at the time of purchase. Ryder explained he had researched the value
through “[o]n-line pricing and going to various bike stores.†Based on his research, the bike was worth
between $1,000 and $1,300. This evidence
was sufficient to prove the value of the bicycle exceeded $950. Ryder, the owner, was competent to testify on
the subject, and explained the basis for his valuation.
Llamas complains that because Ryder purchased the
bicycle for $450, the fair market value must have been $450. Not so.
As Pena explained, “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.
103.) Ryder testified that his friend
gave him a “good deal†on the bike, and his research disclosed it was actually
worth much more. From this, the trier of
fact could have concluded the highest price obtainable in the marketplace was
much more than the low price offered by Ryder’s friend. (Id. at
p. 104 [market value is the highest price obtainable in the market, not
the lowest price].) Llamas also urges
that the bicycle’s value must have decreased during the five months Ryder
possessed it. There is no evidence in
the record establishing this point, and we do not think it is a foregone
conclusion, especially given the relatively short time between the purchase and
the theft. Llamas’s complaint that it
was unclear whether Ryder’s testimony pertained to a new or used bicycle is
likewise unavailing. Ryder testified
that the value of “the bike†stolen was between $1,000 and $1,300. As “the bike†in question was Ryder’s
friend’s used bike, there is no basis to presume, as a matter of law, that
Ryder’s testimony pertained to a new, rather than a used, bicycle.
>
DISPOSITION
The judgment on count 3, grand theft, is
reversed and the matter remanded for further proceedings consistent with the
opinions expressed herein. In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P.J.
KITCHING,
J.
name="_ftn1" title="">[1]
All further undesignated
statutory references are to the Penal Code.
name="_ftn2" title="">[2]
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
