People v. SealsPeople v. Seals
Katherine E. Hardie, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie C. Brenan and Abtin Amir, Deputy Attorneys General, for Plaintiff and Respondent.
On appeal, Seals contends substantial evidence does not support his burglary conviction because the evidence established the price of the phone was less than $950, and the jury could not consider sales tax as part of the phone‘s value. He also contends substantial evidence does not support his robbery conviction. Seals further asserts the trial court erred in denying his Romero motion,2 and that his 25-years-to-life sentence for robbery violates the Eighth Amendment‘s prohibition against cruel and unusual punishment. We modify the judgment to correct the presentence custody credits awarded and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2014, Seals walked into Hot Spot Wireless, a cellphone store. Seals asked Adilmar Hernandez, a store clerk, about a pair of headphones and whether he could “get a better price” on them. Hernandez went to the back of the store to ask the storeowner, German Flores, if he could negotiаte the price of the headphones. While discussing the matter with Flores,
Flores chased after Seals. When Flores was eight feet away from Seals, he confronted Seals, saying: “[G]ive me the fucking phone.” Seals denied having the phone and kept walking, at a faster pace. Flores continued tо follow Seals, demanding that he return the phone. Eventually, as Flores closed the gap between the two men to six feet, Seals pulled out a nine-inch knife. Seals held the knife by his side and said: “Get away from me. I don‘t have your phone.”
When Flores saw the knife he was hesitant and “a little bit scared“; after he saw the knife he stopped going after the phone. Flores thought Seals might use the knife. He began to look for something to use to protect himself. Still, he continued following Seals, demanding that he return the phone. Flores testified at trial that he was determined to get the phone back because he had no insurance tо cover the loss. In an effort to get closer to Seals, Flores threw a rock at him; Seals responded by throwing rocks at Flores. Eventually, police arrived and arrested Seals. Flores retrieved the phone, which was on the ground near where the men had thrown rocks. The knife was found nearby.
A jury found Seals guilty of second degree robbery and second degree commercial burglary. The trial court thereafter found true the prior conviction allegations as to five of Seals‘s
DISCUSSION
I. The Jury Properly Includеd Sales Tax in Determining Whether Seals Entered the Property with Intent to Steal an Item with a Value Greater than $950.
In 2014, the People charged Seals with one count of commercial burglary in violation of
In the lower cоurt and on appeal, Seals has argued it was improper for the jury to include sales tax as part of the value of the phone. Although Seals frames this issue as one of sufficiency of the evidence, the threshold question does not involve disputed facts. Instead, whether sales tax could be included in the calculation of value is a legal question, which we review de novo. (People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Cuellar (2008) 165 Cal.App.4th 833, 836.)
A. Establishing Value in Theft Crimes in California
Under
As explained in People v. Pena (1977) 68 Cal.App.3d 100 (Pena), “When you have a willing buyer and a willing seller, neither of whom is forced to act, the price they agree upon is the highest price obtainable for the article in the open market. Put another way, ‘fair market value’ means the highest price obtainable in the market place . . . .” (Id. at p. 104.) Further, in a
California courts have established these general principles for determining the value of property in a theft crime, yet no court has expressly considered whether sales tax may be included in the valuation.
B. Sales Tax and Fair Market Value
To evaluate this issue, we first consider the nature of the sales tax in California.
“The sales tax is imposed on retailers ‘[f]or the privilege of selling tangible personal property at retail.’ [Citation.]” (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1104 (Loeffler).) It is a longstanding principle that in this state, “[t]he retailer is the taxpayer, not the consumer. ‘The tax relationship is between the retailer only and the state; and is a direct obligation of the former.’ [Citation.]” (Ibid, fn. omittеd.) Retailers pay sales tax on their gross receipts, not on a per item basis. (Ibid;
“[A]lthough the sales tax falls on retailers and must be paid by them to the state, retailers are permitted but not required to obtain reimbursement for their tax liability from the consumer at the time of sale. [Citations.] Whether a reimbursement amount will be added is purely a matter of contract between the retailer
The People primarily rely on one civil case to support the argument that sales tax may be included in a fair market value determination. In Xerox Corp. v. County of Orange (1977) 66 Cal.App.3d 746 (Xerox), the parties disputed whether sales tax could be considered in the valuation of property subject to a personal property tax. County assessors included sales tax in the calculation of the fair market value of office copying machines and related equipment the plaintiff, Xerox, leased to its customers. (Id. at pp. 750-751.) To determine the tax owed on the copiers and equipment, county assessors used the list price for new equipment and added sales tax, and, in some cases, freight charges, to arrive at the “full cash value” of the property. (Id. at pp. 751-752.) Xerox argued the inclusion of sales tax and freight charges was improper; the court disagreed.
The Xerox court began its analysis by noting the legal standard of full cash value for assessment under the California Tax Codе is “fair market value.” In turn, “[f]air market value contemplates a hypothetical transaction between an informed seller, being under no compulsion to sell, and an informed buyer, being under no compulsion to buy.” (Xerox, supra, 66 Cal.App.3d at pp. 752-753.) Xerox contended sales tax was not part of the
“The California courts, while consistently holding that the legal incidence of the tax is upon the vendor, have alwаys recognized that the ultimate burden of the sales tax, as in the case of all taxes paid in the course of production, will be shifted to the consumer. It is a part of the cost of marketing the property that is passed on to the consumer. ‘It must be conceded that the purchase price ultimately is necessarily the source from which payment of the tax must be made. The consumer still has the right to purchase or not at the asked price which includes the tax. Any quibbling between the parties, in an attempt to differentiate between the purchase price and the tax by reason of the separate statеment of the amount intended as tax reimbursement, will not alter the fact that within the purview of the legislative enactment the aggregate of the list price and the amount of tax reimbursement constitutes the actual purchase price of the commodity.’ (Italics added.) [Citation.] [¶] Therefore, under the market value concept, where price is the basis of value, the sales tax is an element of value. The ultimate price the informed seller and buyer agree upon includes the amount of tax reimbursement. The retailer, absent exigent circumstances, would not sell for less, and the buyer purchases only if the value оf the product to him justifies the total price.” (Xerox, supra, 66 Cal.App.3d at pp. 757-758.)
Xerox additionally contended sales tax should not be included in fair market value because the tax amount collected from a hypothetical buyer must be paid over to the state, thus the seller has no interest in the tax. The court rejected this argument as ignoring the market value concept of valuation: “The price at which at which a willing and informed seller will sell, in the absence of some exigent circumstances, will always include his costs of production, materials, overhead, advertising and other costs of doing business. The sales tax is merely another cost of doing business, measured by the gross receipts of that business.” (Xerox, supra, 66 Cal.App.3d at p. 763; County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 140 Cal.App.3d 52 [accord].)
C. The Jury Properly Considered Sales Tax When Determining the Fair Market Value of the Phone on the Section 459 Charge
Although Xerox arose in a different context from this case we find the court‘s reasoning relevant and persuasive. In criminal cases, as in Xerox and other civil cases in this state, “fair market value” has been interpreted as what an item
Given the nature of the sales tax in California, sales tax reimbursement may properly be viewed as part of the price a willing buyer аnd seller, neither of whom is forced to act, agree upon. A seller is not required to seek sales tax reimbursement from the buyer. As a result, as the Xerox court noted, the sales tax is similar to other factors retailers take into consideration to increase the price of an item, such as overhead and advertising. When the retailer chooses not to absorb the sales tax and instead seeks sales tax reimbursement from the buyer, that is “purely a matter of contract between the retailer and consumer.” (Loeffler, supra, 58 Cal.4th at p. 1108.)
In adding sales tax reimbursement to the price of an item, the retailer is not merely collecting a tax on behalf of the state. Instead, the retailer is passing on a cost—for which only it is responsible—to the buyer. Further, when a retailer adds an amount for sales tax reimbursement to the total price of an item, that ultimate price is the highest price to which the willing and informed buyer and seller agree. We agree with the Xerox court that the fair market value test allows for inclusion of sales tax reimbursement in the valuation when price is the basis of value.
Seals relies on several cases from other states to support his argument that the sales tax should not be included in value. We do not find these cases persuasive. For example, in State v. Alexander (1987) 12 Kan.App.2d 1 (Alexander), the appellate court reasoned that “[u]pon the retail sale of merchandise, Kansas law obligates a merchant to collect and forward a sales tax to the state. [Citation.] In no sense may a theft be characterized as a sale. [Citation.] Because the sweaters had not been sold, [the store from which the defendant stole the items] did not owe, and the state was not entitled to collect, a sales tax on them. . . . [¶] . . . Because no sales tax had been imposed, none was stolen.” (Id. at pp. 4-5.)
Similarly, in State v. Kluge (Iowa Ct. App. 2003) 672 N.W.2d 506 (Kluge), the appellate court concluded sales tax is “not truly a component of the ‘value’ of a good or service, but rather a separate amount collected by a retailer for the benefit of a governmental taxing authority. It is a fee collected because of a transaction.” (Id. at p. 509.) The court further noted that “[w]ith the determination of a sales tax does not increase the value of property, we conclude our statutory scheme . . . does not allow for the addition of sales tax on an item not yet purchased.” (Ibid; accord Russell v. State (2006) 367 Ark. 557 [242 S.W.3d 265].)
Alexander, Kluge, and several courts in other states have also adopted the reasoning of two New York trial courts which concluded sales tax should not be included in the value of property to determine the degree of a criminal offense: People v.
However, unlike the sales tax law and administration described in several of the cases from other jurisdictions, California law does not obligate a merchant to collect a sales tax from the customer. (See e.g., Barbuto, supra, 434 N.Y.S.2d at p. 122 [in New York, “a vendor is required to collect the tax from each customer when collecting the price charged for each item of personal property which he then holds as trustee for and on account of the State“].) This is a significаnt distinguishing factor. In California, whether the retailer seeks a sales tax reimbursement from the customer is a matter of contract between the buyer and seller. Under this sales tax framework, the addition of sales tax reimbursement to the cost of an item is an indication of that item‘s fair market value: the total and highest price to which the willing buyer and seller agree.
Some states have concluded sales tax should not be included in the value of stolen property because there was no sale to trigger the imposition of the sales tax. (See e.g., Alexander, supra, 12 Kan.App.2d at p. 817; Kluge, supra, 672 N.W.2d at
Seals adopts this reasoning, arguing a stolen item would not be included in a store‘s gross receipts, thus the merchant would not be liable for any associated tax. In our view, the lack of a “sale” is irrelevant. Determining the fair market value of an item involves a hypothetical transaction between an informed buyer and seller—not the details of any actual particular sale. (See Xerox, supra, 66 Cal.App.3d at pp. 758-760.) So long as there is evidence that, in that hypothetical transaction, the ultimate price the willing and informed seller and buyer agree upon would include sales tax reimbursement, that ultimate price is the fair market value. That the item stolen was not purchased, so that sales tax did not actually come into play, does not change the fair market value determination.
We note our conclusion that sales tax reimbursement may be included in determining the fair market value of stolen retail property is consistent with decisions of several federal courts that have also considered the question. Fоr example, in U.S. v. Draves (7th Cir. 1997) 103 F.3d 1328 (Draves), the court rejected the argument that sales tax should be excluded from the calculation of a threshold jurisdictional value under
Here, the jury could properly consider the sales tax reimbursement in determining the reasonable and fair market value of the phone Seals stole. While there was no testimony about the exact amount attributable to sales tax reimbursement, Flores testified that he usually sold the phone for an amount that, including tax, was over $950 and close to $1,000. The evidence presented at trial supported the jury‘s conclusion that the value of the phone exceeded $950.4
Seals argues there was insufficient evidence of the force or fear element of robbery because Flores testified he was not afraid and he continued to chase Seals even after seeing a knife. We disagree.
A. Background
At trial, the prosecutor asked Flores whether he was afraid when he saw that Seals had a knife. The following colloquy ensued:
“Q: When you saw the knife – let me ask you this. Before then were you afraid?
A: I was hesitant and a little bit scared, yes.
Q: Before you saw the knife?
A: Before I saw the knife, no.
Q: Now you see the knife. Does that make you stop?
A: I stopped going after the phone, yes.
Q: Okay. Were you afraid of being harmed?
A: I wasn‘t afraid of being harmed.
Q: You were not afraid?
A: Correct, sir.
Q: Did the thought of him using that knife go through your head?
A: I thought of him using the knife. That‘s correct that came to my mind as soon as I saw him like that, but I guess I stopped and reacted.
Q: Now, you said you weren‘t afraid. I mean tell us why you weren‘t afraid when you see this knife and you believe you could be harmed with that?
A: I don‘t want to make a joke out of this, but I play rock, scissors, paper. So I figured rock and scissors, you know. I figured look for something to protect myself. Q: So you tried to protect yourself?
A: That‘s correct.”
A short time later during the testimony, Flores apparently became distraught. The court asked if he wished to take a brief recess; Flores answered: “It‘s okay, sir. It is not the matter – this matter part of selling phones is a difficult thing risking your life.”
B. Discussion
When reviewing a claim for substantial evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578). ” ‘An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “[I]t is the jury, not the reviewing court, that resolves conflicts in the evidence . . . .‘Resolution of . . . inconsistencies in the testimony is the exclusive province of the trier of fact.’ [Citatiоn.]” (People v. Solomon (2010) 49 Cal.4th 792, 818.)
” ‘The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.’ [Citations.] It is not necessary that there be direсt proof of fear; fear may be inferred from the circumstances in which the property is taken. [Citation.] [¶] If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid. [Citations.] Moreover, the jury may infer fear ’ “from the circumstances despite even superficially contrary testimony of the victim.” ’ [Citations.] [¶] The requisite fear need not be the result of an express threat or the use of a weapon. [Citations.] Resistance by the victim is not a required element of robbery [citation], and the victim‘s fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ’ ” ‘conduct, words, or circumstances reasonably calculated to produce fear. . . .’ ” ’ [Citation.] [¶] Intimidation of the victim equates with fear. [Citation.] An unlawful demand can convey an implied threat of harm for failure to comply, thus supporting an inference of the requisite fear.” (People v. Morehead, supra, 191 Cal.App.4th at pp. 774-775.)
Moreover, the evidence supported an independent finding that Seals used force to accomplish the tаking of the phone. Seals not only brandished a knife to dissuade Flores from approaching and retaking the phone, he also threw rocks at Flores to keep him away. “In terms of the amount of force required to elevate a taking to a robbery, ‘something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.’ [Citation.] But the force need not be great: ’ ” ’ [a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim‘s resistance. . . . ’ ” ’ [Citation.]” (People v. Lopez (2017) 8 Cal.App.5th 1230, 1235.) Under the circumstances of this case, the jury could reasonably conclude Seals used either fear or force to accomplish the taking. (People v. Wright (1996) 52 Cal.App.4th 203, 210-211.) Substantial evidence supported the conviction for robbery.
The People alleged Seals suffered five prior strike convictions: a 1984 conviction for robbery (
A trial court has the discretion to vacate a finding that the defendant suffered prior strikes, pursuant to
There was no such abuse of discretion here. Although Seals argues he intended only to commit a non-violent, opportunistic thеft, the fact remains that he brought a knife with him and displayed it in furtherance of his crime. Moreover, as the trial court explained, Seals has a long criminal history that includes numerous serious and violent offenses. The court noted Seals‘s adult criminal history began with a 1985 felony drug
In light of Seals‘s history and the circumstances of the current offense, the trial court could reasonably conclude Seals is ” ‘an exemplar of the “revolving door” career criminal to whom the Three Strikes law is addressed.’ [Citation.]” (People v. Carmony, supra, 33 Cal.4th at p. 379.) The court‘s denial of the motion to strike Seals‘s priors was neither irrational nor arbitrary and was not an abuse of discretion. (Ibid; Solis, supra, 232 Cal.App.4th at pp. 1124-1125.)
IV. Seals‘s Sentence of 25 Years to Life is not Cruel and Unusual Punishment.
We further reject Seals‘s contention that the sentence of 25 years to life on the robbery count violates the Eighth Amendment‘s prohibition against cruel and unusual punishment. Seals asserts his sentence was grossly disproportionate to his crime of “taking a cell phone, where no one was injured and the phone was recovered at the scene . . . .” This is not an accurate description of Seals‘s crime or the basis for the sentence. Seals did not merely take a cell phone; the jury found him guilty of robbery, a finding supported by the evidence of Seals‘s conduct during the commission of the crime. Further, his sentence was the result of his prior strikes, which reflected his long, serious criminal record. (Ewing v. California (2003) 538 U.S. 11, 28-31.) “When examining whether the length of a sentence violates the Eighth Amendment, a court may only apply a ’ “narrow
V. Correction of Conduct Credits
The People argue the trial court incorrectly granted Seals conduct credits for 100 percent of his presentence custody time, rather than 15 percent. Seals did not respond to the People‘s argument in his reply brief. We agree the judgment must be modified. (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 935 [excessive award of presentence conduct credit may be corrected for the first time on appeal].)
Under
The judgment is modified to reflect an award of 89 days of presentence conduct credit. The trial court is directed to prepare a corrected abstract of judgment reflecting the correct award of presentence conduct credit and to forward it to the Department of Corrections and Rehabilitatiоn. In all other respects, the judgment is affirmed.
SORTINO, J.*
We concur:
FLIER, Acting P.J.
GRIMES, J.