Filed 12/11/15 P. v. Stephan CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040062
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1244107)

             v.

SAMIH STEPHAN,

         Defendant and Appellant.



         Defendant Samih Stephan appeals from a judgment entered following a jury trial.
On appeal, defendant argues that there was insufficient evidence to support his conviction
for grand theft. (Pen. Code, §§ 484, 487, subd. (a).)1
                                  STATEMENT OF THE FACTS AND CASE
         This case arises out of a series of theft offenses that defendant committed over six
days. Defendant was charged and convicted of robbery of two hotels, two drugstores and
one bank. (§§ 211, 212.5, subd. (c); counts 1 through 5.) Defendant does not dispute
these convictions.2




         1
             All further statutory references are to the Penal Code.
         2
          The facts underlying these convictions are omitted because they are not relevant
to the issues on appeal.
        In addition to the robberies noted above, defendant was also charged with grand
theft of hotel keys. (§§ 484, 487, subd. (a); count 6.) Defendant acknowledges that he
stole the hotel keys, but argues that the keys were not worth more than $950, and as a
result, he should have been convicted of petty theft.
        On the night of October 26, 2012, when the assistant general manager of the Plaza
Suites Hotel, Adrian Flores arrived at work, he was informed by hotel staff that the hotel
keys were missing. These keys included the entrance key, the outside-emergency key, a
lock-out key, and others. The lockout key allowed the hotel to make a guest’s key
inoperable so as to lock the guest out of their room.
        To address the issue of the missing keys, the hotel hired a locksmith to change the
locks and keys. The lock-out key was deprogrammed, a new master set of keys was
created, and the locksmith started replacing the locks on the individual hotel rooms.
Before the locksmith completed the job, the police informed Flores that the keys had
been recovered. Flores contacted the locksmith and told him to stop the job.
        Flores gave conflicting testimony at trial about the locksmith’s charges. On direct
examination, Flores testified that he received an invoice from the locksmith for $5,000
reflecting the work completed. On cross-examination, Flores said that he may have told
the police it was going to cost the hotel $1,600 to replace the locks and keys. At the
preliminary hearing, Flores testified that he thought it was going to cost the hotel
approximately $3,000 to replace the locks and keys. Flores did not bring the locksmith’s
invoice to court. There was no evidence presented regarding the market value of the
keys.
        Following his conviction for the robberies and grand theft, defendant was
sentenced to state prison for a total term of nine years eight months. Defendant filed a
timely notice of appeal.



                                              2
                                        DISCUSSION
       Defendant argues that there was insufficient evidence to support his conviction for
grand theft, because the prosecution only presented value of the incidental costs
associated with the loss of the keys, not the market value of the keys themselves.
       “In reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v.
Virginia (1979) 443 U.S. 307, 319.) We apply an identical standard under the California
Constitution. (Ibid.) “In determining whether a reasonable trier of fact could have found
defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence
in a light most favorable to respondent and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.
Johnson (1980) 26 Cal.3d 557, 576.)
       Here, defendant was charged with grand theft in connection with his stealing the
hotel keys. Grand theft is defined as stealing the property of another that is “of a value
exceeding nine hundred fifty dollars ($950).” (§ 487, subd. (a).) Theft not defined as
grand theft is petty theft. (§ 488.)
       At trial, the prosecution produced evidence that as a result of the theft of the keys,
the hotel hired a locksmith to start changing the locks, but stopped working once the
stolen keys were recovered. The hotel manager had wavered in his testimony and
statement to police about the costs associated with the locksmith’s work, estimating
amounts from $1,600 to $5,000. He testified at trial that if the job had been completed,
the hotel would have incurred a total of $10,000 in locksmith fees. The manager did not
produce the locksmith’s invoice at trial. During closing argument, the prosecutor

                                              3
acknowledged the fact that while the hotel manager’s estimate of the locksmith’s fees
changed over time, by any account the amount the hotel paid in connection with the
stolen keys was over $950, and therefore defendant was guilty of grand theft.
       Our review of the record shows that there was insufficient evidence to support
defendant’s conviction for grand theft. Incidental costs associated with the theft of
property are not sufficient to support a finding of the value of the stolen property.
(People v. Simpson (1938) 26 Cal.App.2d 223, 228-229 (Simpson).) In Simpson, the
defendant was convicted of stealing magnetos from 12 tractors. In reversing defendant’s
conviction for grand theft, the Court of Appeal concluded among other things that the
trial court had erred in allowing evidence of the costs of reinstalling the magnetos. The
court reasoned: “It is not a question of what an owner would have to pay for reinstalling a
magneto; it is the market value thereof which is to be considered by the jury in
determining whether the offense is a felony or only a misdemeanor.” (Id. at p. 229.)
       Here, there was no evidence of the market value of the stolen keys. The only
evidence presented regarding the value of the keys was the locksmith’s fees for replacing
some of the hotel’s locks. These costs are incidental to the theft of the keys, and not
evidence of the value of the keys themselves. (Simpson, supra, 26 Cal.App.2d. at
p. 229.) As a result, defendant’s conviction of grand theft is not supported by the
evidence.3
       The Attorney General offers an unpersuasive argument that count six qualifies as a
felony, and agrees with Simpson, that the remedy under the circumstances is to reduce the
charge to a misdemeanor. While retrial of this charge is barred, this court can modify the
verdict to reflect a conviction of the lesser crime of petty theft. (§ 1181, subd. 6; see also,
Simpson, supra, 26 Cal.App.2d at pp. 229-230.)


       3
          Defendant’s additional arguments on appeal regarding instructional error and
ineffective assistance of counsel are moot in light of our disposition in this case.
                                              4
                                       DISPOSITION
       The judgment is modified to reflect that the conviction in count six for grand theft
is reduced to petty theft. (§§ 484, 488.) The matter is remanded to the trial court for
resentencing on count six in light of the reduction of the charge to a misdemeanor.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




People v. Stephan
H040062




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