People v. PeltonPeople v. Pelton
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 (
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
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
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
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
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
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
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.
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.
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.
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 (
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” (
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
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.
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. (
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
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.
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.
“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
5. Appellant‘s motion for judgment of acquittal and new trial motion.
At the close of evidence, appellant moved under
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. (
For purposes of theft offenses, the value of the property taken is determined by its “reasonable and fair market value.” (
“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. (
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
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
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.” (
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.
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.
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.” (
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
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
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.
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.” (
“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
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.
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.)
Lastly, appellant claims that the AT&T employees’ valuation opinion testimony should have been excluded under
Preliminarily, we observe that appellant did not object to the challenged opinion testimony under
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,
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
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.” (
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:
“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.
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
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. (
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.
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.
Vandalism is punishable as a felony if the amount of “defacement, damage, or destruction” is $400 or more; otherwise, it is only a misdemeanor. (
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.
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
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.
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.”
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
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.
Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under
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” (
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
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
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
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
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
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
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
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
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.)
Appellant does not address Whitmer, but contends the Legislature effectively codified the expansive construction of Bailey that Whitmer rejected when it amended
Nothing in the plain language of
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 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
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
The applicability of
California courts have uniformly held that Apprendi is inapplicable to judicial fact finding under
Appellant broadly asserts that any pre-Erlinger authority holding that
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
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
1. Relevant background.
a. Sacramento County case (20FE008303).
On December 19, 2022, appellant pled no contest to one count of grand theft (
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 (
c. Fresno County case (F021903486).
On March 14, 2024, a jury in Fresno County Superior Court convicted appellant of grand theft (
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
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
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
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.
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
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
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
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. 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
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.” (
A defendant has “the right to a hearing before a judge to dispute the determination of the amount of restitution.” (
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,
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
Appellant contends the foregoing authorities have been undermined by Ellingburg, which held that restitution imposed under the Mandatory Victims Restitution Act of 1996 (
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
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
Further, appellant fails to establish the prosecution was in possession of the records he sought. (Cf.
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
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
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
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.
The true findings based on appellant‘s admissions to the aggravating factors alleged under
LEVY, Acting P. J.
WE CONCUR:
DETJEN, J.
SANDHU, J.
Notes
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