People v. Cook

• Decision Date: 05 April 1965
• Citation: 43 Cal.Rptr. 646,233 Cal.App.2d 435
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Juanita COOK, Defendant and Appellant. Crim. 9721.

Page 646

43 Cal.Rptr. 646

233 Cal.App.2d 435

The PEOPLE of the State of California, Plaintiff and Respondent, v. Juanita COOK, Defendant and Appellant.

Crim. 9721.

District Court of Appeal, Second District, Division 2, California.

April 5, 1965.

Hearing Denied June 2, 1965.

Fitzgerald & Davis and Alexander Fitzgerald, Los Angeles, by appointment of the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., David M. Rothman, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellant was convicted in a nonjury trial of violating Penal Code, § 487, sub. 1: grand theft. She appeals from the judgment.

On March 2, 1963, the manager of a men's clothing store in Los Angeles noticed a man leaving through the back door of the store carrying a number of suits. He followed the man out the door, saw him enter a parked car, the engine of which was racing, and then approached the man and told him to drop the suits. The man turned to appellant who was seated behind the steering wheel and said something which the manager could not hear. The manager repeated his demand to which neither the man nor appellant responded. The manager then went to the rear of the car, removed a cloth covering the license plate and wrote down the license number.

An inventory check revealed that eight suits, valued by the manager at $29.95 a piece, ¹ had been stolen.

On April 8, 1963, appellant was arrested and interrogated at the Los Angeles County Jail. Officer Beruk testified that at that time he said to appellant 'we had a burglary report where a car was used. In told her the license number, particularly where this burglary had occurred, where this fellow went into the store and removed I think it was eight suits at the time. * * * I named the store and the address on Crenshaw Boulevard. She says, 'I know what you are talking about. As to the fellow's name his address where the lives, I will not tell you.'

'I asked her if she retained any money from the suits or got any money from the suits. She said no.

'I asked her if she knew where the suits were presently. She said, 'No, I do not know where they are.'

'She said she drove her monther's car, * * *. I don't recall the license number. She said she drove the car there and she drove it away * * *.

'Q. When she said she drove the car over to Richman Bros., did she say she went there with this other man and she refused to give you his name? A. Yes.'

Appellant contends that the prosecution did not sufficiently establish that the value of the goods stolen was in excess of two hundred dollars (Penal Code, § 487, sub. 1.)

On cross-examination, it was brought out that the manager testifying at the preliminary hearing had fixed the value of '* * * a couple of these suits [at] * * * $29.95 * * *.' He also testified that his store operated on a 'markup' basis of '* * * around 35 or 40 per cent.'

It is well established that the value to be placed on stolen property for purposes of section 487 'is the fair market value of the property and not the value of the property to any particular individual.' (People v. Lizarraga, 122 Cal.App.2d 436, 438, 264 P.2d 953; People v. Ciani, 104 Cal.App. 596, 286 P. 459; People v. Williams, 169 Cal.App.2d 400, 403, 337 P.2d 134.)

Witkin states the rule as follows: 'Value of property is estimated in lawful money of the United States. (P.C. 678.) And classification of the offense where value is the determining factor, depends on 'the reasonable and fair market value.' (P.C. 484.) Hence, the test is what it would bring in the open market, not its special value to the owner, nor its replacement cost. [Citations.]' (1 Witkin, Calif. Crimes 346)

Evidence of value is, manifestly, an element of the crime charged that should warrant the closest scrutiny by defense counsel when the items stolen may have a value dependent in large part on such factors as mark-up and the type of store victimized; and it would be open to appellant's counsel, if not incumbent upon him, to show, for example, that the list price being paid for similar merchandise in the vicinity was lower than the alleged price of the goods.

The policy behind the fair market value rule is well stated in People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361 at p. 363, 156 N.E.2d 69, at p. 70, as follows: 'While cost of replacement, or value in the wholesale market, is an item to be reckoned with in fixing value in the retail market, it is obvious that neither cost nor wholesale value may be adopted as the appropriate measure where the larceny is from a department store. To accept wholesale value in such case would be to ignore the facts of economic life. Stated very simply, it is the retailer's function in our economy to move goods to the consuming public and, in the process, the market value of the goods is unquestionable enhanced. In addition, the retailer expends money on various services--including advertising, promoting, display and packaging * * *. When, therefore, a thief steals an article from a department store, he steals something having a market value quite different from that which it had in the hands of the wholesaler.'

In the absence of evidence to the contrary, however, appellant could not expect the...