Filed 1/4/16 P. v. Young CA3
Opinion on transfer from Supreme Court

                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Mono)
                                                            ----




THE PEOPLE,                                                                                  C075805

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                         MFE13001273)
         v.
                                                                                OPINION ON TRANSFER
TAMIE SUE YOUNG,

                   Defendant and Appellant.




         A jury convicted defendant Tamie Sue Young of first degree burglary (Pen. Code,
§ 459; unless otherwise stated, statutory references that follow are to the Penal Code) and
grand theft from an elder (§ 368, subd. (d)(2)). The trial court placed defendant on three
years’ probation with 200 days in county jail.
         On appeal, defendant contends there is insufficient evidence of the market value of
the stolen items to support the grand theft from an elder conviction, the trial court did not
properly instruct the jury, and she is entitled to two days of presentence conduct credits.




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       In our original opinion, we affirmed the judgment in its entirety. The Supreme
Court granted review and subsequently transferred the matter back to us with directions
to vacate our decision and to reconsider the conduct credit issue in light of People v.
Dieck (2009) 46 Cal.4th 934 (Dieck). Pursuant to the directions of The California
Supreme Court, we vacated our prior decision on October 21, 2015, and have
reconsidered the matter.
       Defendant is entitled to two days of conduct credits and we shall modify the
judgment accordingly. In all other respects we shall affirm.

                                FACTS AND PROCEEDINGS

       Seventy-four-year-old Sharon Thompson and her 78-year-old husband Paul
Thompson lived by themselves in their home in Bishop. In spring 2012, Sharon
Thompson hired defendant to do housecleaning. Defendant cleaned the Thompson home
every two weeks. She cleaned the home for about two hours and was not supervised.
       Sharon Thompson owned a gold plumeria ring set with small diamonds and a
Swiss Bucherer pendant watch on a 32-inch gold chain, storing them in a special spot in
the master bedroom. She wore the jewelry to church on January 20, 2013. The next day,
she noticed that they and a kangaroo charm on a gold rope chain were missing. Paul
Thompson noticed his gold Southern California Edison 35-years-of-service ring was also
missing. Defendant cleaned the Thompson home on January 21, 2013. While cleaning
the house, defendant went to her car at least once.
       Sharon Thompson had bought over 20 pieces of gold jewelry. She purchased the
plumeria ring in Hawaii for $630. She estimated the value of the kangaroo charm and
gold chain to be around $600. She had bought the watch and chain in Switzerland, and
estimated its value at $1,200. Paul Thompson, who collected gold coins and followed the
market price of gold, estimated his ring was worth between $500 and $600.




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       Mono County Sherriff’s investigator John Rutowski went to local jewelry, antique,
and pawn shops to locate the stolen jewelry. Sharon Rock, the owner of Lyon Jewelers in
Bishop purchased the kangaroo charm and plumeria ring from defendant. Investigator
Rutowski obtained a copy of the store receipt and the check that Rock wrote to defendant
for the jewelry on January 22, 2013. The investigator also obtained the plumeria ring,
which Sharon Thompson identified as hers. Rock testified and confirmed purchasing the
jewelry. As was her practice, she bought the items for the scrap value of the gold, giving
defendant a $280 check for the items.
       The defense presented numerous witnesses who employed defendant as a
housecleaner and testified to her good character for honesty.

                                         DISCUSSION

                                               I

                                 Sufficiency of the Evidence

       Defendant contends there is insufficient evidence of the market value of the
jewelry she stole to support the conviction for grand theft from an elder.
       “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence--evidence that is
reasonable, credible and of solid value--such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] . . . “[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]’ ” (People v. Nelson (2011) 51 Cal.4th 198,
210.) Reversal on the ground of insufficiency of the evidence “is unwarranted unless it


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appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support . . .’ ” the jury’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       Section 368 states in pertinent part: “(d) Any person who is not a caretaker who
violates any provision of law proscribing theft, . . . is punishable as follows: [¶] (1) By a
fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a
county jail not exceeding one year, or by both that fine and imprisonment, or by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value exceeding nine hundred fifty dollars ($950).”
       Noting that section 368 does not specify how the $950 threshold is determined,
defendant suggests looking to the law of theft since section 368 applies to the violation of
“any provision of law proscribing theft.” The statute proscribing theft, section 484 states
in pertinent part: “In determining the value of the property obtained, for the purposes of
this section, the reasonable and fair market value shall be the test.” (§ 484, subd. (a).)
Defendant next looks to the Code of Civil Procedure to define fair market value. “The
fair market value of the property taken is the highest price on the date of valuation that
would be agreed to by a seller, being willing to sell but under no particular or urgent
necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to
buy but under no particular necessity for so doing, each dealing with the other with full
knowledge of all the uses and purposes for which the property is reasonably adaptable
and available.” (Code Civ. Proc., § 1263.320, subd. (a).) From this he reasons that the
only evidence of fair market value is the $280 amount given by the jewelry shop owner,
as an estimate of value based on the purchase price of an item does not accurately reflect
the item’s fair market value.
       Defendant does not cite and we cannot find any authority applying the definition
of fair market value from Code of Civil Procedure section 1263.320 to a theft case or any

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other criminal case. This statute is in title 7, the part of the Code of Civil Procedure
governing eminent domain law. Unsurprisingly, it is the test of determining fair market
value for compensation in eminent domain proceedings. (City of San Diego v. Barratt
American, Inc. (2005) 128 Cal.App.4th 917, 933.) It does not define fair market value
for determining the degree of theft.
       Case law more specifically provides that “fair market value” means the highest
price agreed upon by a willing buyer and willing seller at the time and place of the theft.
(See People v. Pena (1977) 68 Cal.App.3d 100, 103-104.) An owner of property is
qualified to opine as to value of property he or she owns. (Evid. Code, § 813, subd.
(a)(2); People v. More (1935) 10 Cal.App.2d 144, 145.) “The weight to be given the
owner’s testimony as to value is for the trier of the fact [citation].” (People v. Henderson
(1965) 238 Cal.App.2d 566, 567.)
       The victims’ testimony is sufficient evidence establishing a value of the stolen
jewelry exceeding $950. The $280 paid by the jeweler does not establish the highest
price available; the jewelry was not sold to the jeweler as jewelry but only for its scrap
value as gold. In addition, the jeweler did not purchase what may have been the most
expensive item taken, the Swiss watch. Substantial evidence supports defendant’s
conviction.

                                              II

                                       Jury Instructions

       Defendant contends the trial court erred by failing to instruct the jury on the
definition of fair market value for the charge of grand theft from an elder and did not give
an instruction on the lesser included offenses of grand theft or petty theft.
       The trial court gave the following version of the instruction on degrees of theft,
CALCRIM No. 1801: “If you conclude that the defendant committed a theft, you must
decide whether the crime is a grand theft or a petty theft. The defendant committed grand


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theft if she stole property worth more than $950. The value of property is the fair market
value of the property. All [other] theft is petty theft. The People have the burden of
proving beyond a reasonable doubt that the theft was grand theft rather than a lesser
crime. If the People have not met this burden, you must find the defendant not guilty of
grand theft.”
       CALCRIM No. 1801 also contains the following instructions on fair market value
that were not given: “Fair market value is the highest price the property would
reasonably have been sold for in the open market at the time of, and in the general
location of, the theft” and, “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.”
       A trial court has a sua sponte duty to instruct the jury on the essential elements of
an offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) In addition, “ ‘[a] court
must instruct sua sponte on general principles of law that are closely and openly
connected with the facts presented at trial. [Citation.]’ ” (People v. Moon (2005)
37 Cal.4th 1, 25.) This sua sponte duty to instruct also mandates explanatory instructions
when a term in an instruction has a “technical meaning that is peculiar to the law.”
(People v. Howard (1988) 44 Cal.3d 375, 408.) An appellate court applies the de novo
standard of review in determining whether the trial court had a duty to give a particular
jury instruction sua sponte. (People v. Guiuan (1998) 18 Cal.4th 558, 569 (Guiuan).)
“ ‘[A] party may not complain on appeal that an instruction correct in law and responsive
to the evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.’ [Citation.]” (Id. at p. 570.)
       The trial court instructed the jury on the statutory element of fair market value.
Defendant cites no authority for the proposition that fair market value is a technical term
requiring additional instruction. By failing to request a clarifying instruction, defendant
forfeited his claim that the trial court should have provided further clarifying instructions

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regarding the definition of the term “fair market value.” (See Guiuan, supra, 18 Cal.4th
at p. 570.) Finally, in light of the overwhelming, uncontested evidence establishing the
value of the stolen items, any instructional error was harmless beyond a reasonable doubt.
(Neder v. United States (1999) 527 U.S. 1, 4, 15-16 [144 L.Ed.2d 35, 51]; People v.
Flood (1998) 18 Cal.4th 470, 479-480, 503-504.)
       Defendant’s contention regarding lesser included offense instruction is also
without merit. The jury was instructed on grand and petty theft and on grand theft from
an elder, but was not instructed on petty theft from an elder. A trial court must instruct
sua sponte on a lesser included offense when the evidence raises a question as to whether
all of the elements of the charged offense are present and there is evidence that would
justify a conviction on the lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365.)
In light of the evidence establishing the value of the stolen items, there is no evidence
that would justify a conviction of the lesser included offense of petty theft from an elder.
Therefore, the trial court had no duty to instruct on the lesser included offense.

                                             III

                                    Conduct Credits
       The trial court awarded defendant three days of presentence custody credit and no

conduct credit. She claims that she is entitled to two days of conduct credit under section

4019, which awards a defendant with two days of conduct credit for every two days of

presentence custody.


       She is correct. Section 4019, subdivision (e) provides: “A deduction shall not be
made under this section unless the person is committed for a period of four days or
longer.” She is therefore entitled to conduct credit if her total commitment is for at least
four days. (People v. Dieck, supra, 46 Cal.4th at p. 937.) A defendant earns two days of
conduct credit for every two days of presentence custody. (§ 4019, subds. (c), (d), and


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(f).) Since she was committed to a 200 day jail term as a condition of her probation, she
is entitled to two days of conduct credit.

                                        DISPOSITION

       The judgment is modified to award two days of custody credit for a total of five
days of presentence credit. As modified, the judgment is affirmed.



                                                       HULL                 , J.



We concur:



      NICHOLSON              , Acting P. J.



      RENNER                 , J.




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