Filed 11/12/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH A. GRANT,

Defendant and Appellant.

D076576

(Super. Ct. No. SCS307603)

APPEAL from a judgment of the Superior Court of San Diego County, 

Dwayne K. Moring, Judge. Affirmed in part as modified, reversed in part, 

and remanded for resentencing.

Sheila O’Connor, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Melissa 

Mandel and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and 

Respondent.

Defendant Kenneth Grant admittedly stole merchandise from a 

Wilsons Leather outlet store. The store sells everything at a discount, 

determined by applying varying discount percentages to a “comparable value” 
2

the store displays on tags attached to each product. At trial, the prosecution 

introduced evidence showing that the cumulative comparable values of the 

stolen merchandise exceeded the $950 felony theft threshold. However, the 

prosecution introduced (1) no evidence establishing that the comparable 

values represented the merchandise’s actual fair market values, and (2) 

evidence of actual sales prices for only a few of the stolen products (totaling 

about $265). Presumably relying on the comparable values, the jury found 

the value of the stolen merchandise exceeded $950, and convicted Grant of 

grand theft (Pen. Code, § 487, subd. (a))1 and burglary (§ 459).2 The trial 

court sentenced him to three years in local custody. 

On appeal, Grant contends his grand theft conviction must be reduced 

to petty theft, and his burglary conviction must be reversed, because (1) the 

trial court erroneously instructed the jury regarding the definition of fair 

market value; (2) the trial court failed to instruct the jury regarding the 

distinction between burglary and misdemeanor shoplifting; and (3) 

substantial evidence does not support the finding that the value of the stolen 

merchandise exceeded $950. 

Even if the jury had been properly instructed—an issue we need not, 

and do not, decide—we conclude its finding regarding the fair market value of 

the stolen merchandise is not supported by substantial evidence. 

Accordingly, we reduce Grant’s grand theft conviction to petty theft, reverse 

his burglary conviction, and remand for resentencing.

1 Further undesignated statutory references are to the Penal Code.

2 The jury also found Grant guilty of misdemeanor battery (§ 242) for 

shoving a store employee while fleeing. The battery conviction is not at issue 

in this appeal.
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I. FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 2019, about one hour before closing time, Grant entered 

the Wilsons Leather outlet store at the Las Americas outlet shopping mall in 

San Ysidro. “[E]verything [at the mall] is discounted, [and] nothing is sold 

[at] full value.” Grant put on a Cole Haan jacket that was for sale, then filled 

shopping bags with seven pairs of store-brand gloves, four Karl Lagerfeld 

backpacks, and two Karl Lagerfeld crossbody purses. 

The assistant store manager, Pamela, heard Grant’s shopping bags 

rustling and saw him filling them with merchandise. She told a sales 

associate to call mall security. 

Grant walked quickly toward the front door, where Pamela and the 

sales associate were standing. When Pamela told Grant he needed to either 

leave the merchandise or pay for it, Grant continued out the door and gave 

Pamela a “little shove” with the bags to move her out of the way. The sales 

associate took a picture of Grant with her cellphone as he fled the mall. 

The employees showed the cellphone picture to a mall security guard, 

who recognized Grant from prior encounters with him. Pamela called the 

police, and officers responded a few hours later, after the store had closed and 

all employees had left. An officer returned two days later, spoke with 

Pamela, and took a report. Using the “comparable value” displayed on the 

tag attached to each stolen item (rather than the discounted price at which 

the store actually sold each item), Pamela reported that Grant stole more 

than $1,000 worth of property. Grant was apprehended a few days later at 

the San Ysidro port of entry. 

Grant admitted at trial that he stole items from the Wilsons Leather 

outlet, but he disputed the quantities, pricing, and whether he had shoved

Pamela. Specifically, Grant testified that stealing from stores is “what [he] 
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do[es] for a living,” so he is always on his “A-plus game” and is careful not to 

exceed the $950 felony threshold and “never touch[es] anybody, because 

[then] it’s a robbery.” 

Grant was charged with one count each of grand theft (§ 487, subd. (a)), 

burglary (§ 459), and battery (§ 242).3 After deliberating less than two hours, 

the jury found him guilty as charged. The trial court sentenced Grant to 

three years in local custody. 

II. DISCUSSION

Grant contends the jury’s finding that he stole more than $950 worth of 

merchandise—a finding on which both his grand theft and burglary 

convictions depend—is not supported by substantial evidence because the 

prosecution relied on the “comparable value” Wilsons Leather displayed on 

the tag attached to each stolen item without introducing any evidence to 

establish that the comparable values reflect the stolen merchandise’s actual 

fair market values. We agree.

A. Background

Wilsons Leather’s assistant manager, Pamela, testified at trial about 

the pricing of the merchandise Grant stole. She explained generally that

every product has a “full price that Wilsons Leather discounts” by varying 

percentages. Tags attached to the merchandise display a “comparable value.”

The discounted sales price that customers actually pay is determined by 

applying varying discount percentages—indicated on display racks and 

shelves—to the “comparable value” displayed on the tag attached to an item. 

3 Because we are resolving this appeal on substantial evidence grounds, 

we need not address the distinctions between the various theft offenses, 

which our high court recently discussed in People v. Lopez (2020) 9 Cal.5th 

254 (Lopez).
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The discount percentages change every Wednesday, and the store does not 

track past discount percentages.

The police officer who responded on the night of the theft call, Officer 

Jasmin Wong, returned to the store two days later (a Wednesday) and took 

pictures of products virtually identical to those that were stolen and their 

tags. Each tag appears to consist of a manufacturer’s hang tag, on which 

Wilsons Leather placed a sticker displaying the “comparable value” and other 

information—but no actual sales price. The pictures were admitted as trial 

exhibits. 

Regarding the stolen Cole Haan jacket, Pamela testified the tag 

displayed a comparable value of $350. A display sign on the sales rack also 

indicated a comparable value of $350, and a discounted sale price of $89.99 

(about a 75 percent discount). 

The tag corresponding to the seven stolen pairs of store-brand gloves 

reflected a comparable value of $60 each. Pamela testified that “a typical 

price point for those $60 gloves” would be $25 or $34.99, and she “think[s]” it 

was $25 on the day of the theft. Officer Wong documented the sale price as 

$25 in her report. 

Turning to the Karl Lagerfeld products, the tags corresponding to the 

four stolen backpacks reflected comparable values of $168, $168, $188, and 

$198. The tag on the backpack with the $188 comparable value also reflected 

an “MSRP” of $188, but Pamela testified she did not “know what MSRP 

stands for.” The tag corresponding to the two stolen crossbody purses 

reflected comparable values of $228. 

Pamela testified Karl Lagerfeld is the most expensive brand that 

Wilsons Leather sells, but she did not know what discount percentages

applied to the stolen merchandise on the day of the theft. A picture of a Karl 
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Lagerfeld display cabinet at the store indicated a 60 percent discount rate. 

Pamela confirmed Officer Wong took this picture before the weekly price 

change, and that the discount sign in the picture was in the same place as the 

discount sign applicable to the stolen backpacks and purses. Nevertheless, 

she claimed the 60 percent discount rate did not apply to the stolen 

merchandise. She said 40 percent is a more typical discount rate at the store, 

but she “d[id]n’t remember on March 25th what . . . the discount or the sale 

price was for [the] Karl Lagerfeld bags.” Pamela acknowledged she did not 

“have any experience selling Karl Lagerfeld outside of Wilsons Leather.”

During closing arguments, the prosecutor maintained Grant was guilty 

of grand theft and burglary (instead of petty theft) because the comparable 

values displayed on the stolen merchandise’s tags cumulatively exceeded 

$950. Defense counsel essentially conceded Grant had committed petty theft, 

but urged the jury not to use the comparable value because “[w]e know 

nothing about it”—“what is it . . . compare[d] . . . to?”

The jury was instructed that to find Grant guilty of grand theft and 

burglary, it had to find that the prosecutor proved beyond a reasonable doubt 

that the fair market value of the stolen merchandise exceeded $950; 

otherwise, the jury could convict Grant only of petty theft as a lesser included 

offense of grand theft. After deliberating less than two hours, the jury found

Grant guilty of grand theft and burglary. 

B. Legal Principles

To establish that Grant committed either grand theft or burglary, the 

prosecution bore the burden of proving he stole property valued at more than 

$950. (§§ 484, 490.2, 459, 459.5; People v. Valenzuela (2019) 7 Cal.5th 415, 

420; Lopez, supra, 9 Cal.5th 254 at p. 265; People v. Jennings (2019) 42 

Cal.App.5th 664, 670.)
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“In determining the value of the property obtained, for the purposes of 

[theft offenses], the reasonable and fair market value shall be the test.” 

(§ 484; see People v. Romanowski (2017) 2 Cal.5th 903, 914 (Romanowski) 

[“section 484 is a definitional section” that “sets the ground rules for how . . . 

[s]pecific theft crimes . . . set out in a variety of other sections” of the Penal 

Code “are [to be] adjudicated”]; People v. Seals (2017) 14 Cal.App.5th 1210, 

1215.)

The fair market value of an item is “the highest price obtainable in the 

market place” as between “a willing buyer and a willing seller, neither of 

whom is forced to act.” (People v. Pena (1977) 68 Cal.App.3d 100, 103 (Pena); 

see Romanowski, supra, 2 Cal.5th at p. 915.) “Put another way, ‘fair market 

value’ means the highest price obtainable in the market place rather than the 

lowest price or the average price.” (Pena, at p. 104.) Fair market value is 

“not the value of the property to any particular individual.” (People v. 

Lizarraga (1954) 122 Cal.App.2d 436, 438 (Lizarraga).) 

Fair market value may be established by opinion or circumstantial 

evidence. (See People v. Zamudio (2008) 43 Cal.4th 327, 357-358; Lizarraga, 

supra, 122 Cal.App.2d at p. 437 [testimony of experienced furriers sufficient 

to establish value of stolen fur pieces]; People v. Williams (1959) 169 

Cal.App.2d 400, 403 (Williams) [testimony by experienced salesclerk 

sufficient to establish value of stolen suits].) “[T]he price charged by a retail 

store from which merchandise is stolen” is also “sufficient to establish the 

value of the merchandise,” absent proof to the contrary. (People v. Tijerina

(1969) 1 Cal.3d 41, 45 (Tijerina).) Jurors may also “rely on their common 

knowledge” in determining the value of an item. (People v. Ortiz (2012) 208 

Cal.App.4th 1354, 1366 (Ortiz) [“inference by the jurors was not mere 
8

speculation, but was instead reasonably based on common knowledge 

regarding the value of late-model BMW’s”].)

“ ‘When considering a challenge to the sufficiency of the evidence to 

support a conviction, we review the entire record in the light most favorable 

to the judgment to determine whether it contains substantial evidence—that 

is, evidence that is reasonable, credible, and of solid value—from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citation.] We presume in support of the judgment the existence of 

every fact the trier of fact reasonably could infer from the evidence. 

[Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) 

“Substantial evidence includes circumstantial evidence and any 

reasonable inferences drawn from that evidence.” (In re Michael D. (2002) 

100 Cal.App.4th 115, 126 (Michael D.).) However, “[a] reasonable inference 

may not be based on suspicion alone, or on imagination, speculation, 

supposition, surmise, conjecture, or guesswork; a finding of fact must be an 

inference drawn from evidence rather than a mere speculation as to 

probabilities without evidence.” (People v. Rekte (2015) 232 Cal.App.4th 

1237, 1247 (Rekte).) “ ‘ “By definition, ‘substantial evidence’ requires evidence

and not mere speculation.” ’ ” (People v. Ramon (2009) 175 Cal.App.4th 843, 

851.)

C. Analysis

In light of Wilsons Leather’s pricing structure—under which 

“everything . . . is discounted” from a displayed “comparable value” and 

“nothing is sold [at] full price”—we agree with Grant that substantial 

evidence does not support the jury’s finding that the fair market value of the 

merchandise he stole exceeded $950.
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Most fundamentally, although the prosecution introduced photographic 

and testimonial evidence establishing the comparable values Wilsons Leather 

displayed on the tags attached to the stolen merchandise, the prosecution 

introduced no evidence establishing that those comparable values reflect the 

merchandise’s fair market values. The pictures of the products’ tags, 

themselves, did nothing more than show the displayed comparable values. 

And the assistant manager (Pamela) established only that those comparable 

values were not the prices that Wilsons Leather actually charged. The fact 

that she testified one of the representative tags featured both a comparable 

value and an MSRP is of no moment in light of her testimony that she did not 

know the meaning of MSRP. Moreover, because the comparable value and 

MSRP were the same, and because Wilsons Leather sells nothing at its 

comparable value, it necessarily follows that Wilsons Leather also did not sell 

this item at MSRP.

Nor did Pamela offer any opinion about the merchandise’s fair market 

value. To the contrary, she expressly stated she did not “have any experience 

selling Karl Lagerfeld [backpacks or crossbody purses] outside of Wilsons 

Leather.” In this way, her testimony and expertise differed from those of the 

experienced furriers in Lizarraga, supra, 122 Cal.App.2d at page 437, and the 

experienced suit salesclerk in Williams, supra, 169 Cal.App.2d at page 403, 

whose testimony was sufficient to establish the fair market value of stolen 

merchandise in those cases.

To be sure, “circumstantial evidence and any reasonable inferences 

drawn from that evidence” may constitute substantial evidence. (Michael D., 

supra, 100 Cal.App.4th at p. 126.) But the record before us contains no 

evidence from which the jury could reasonably have inferred that the 

merchandise’s comparable values reflected their fair market values. (Rekte, 
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supra, 232 Cal.App.4th at p. 1247 [“a finding of fact must be an inference 

drawn from evidence rather than a mere speculation as to probabilities 

without evidence”].) This is particularly relevant in the context of an outlet 

store that sells everything at a discount.4

Defense counsel’s query during closing argument— “what is [the 

comparable value] . . . compare[d] . . . to?”—illustrates the prosecution’s 

evidentiary shortcoming. Was the stolen Wilsons Leather merchandise 

identical to merchandise sold at traditional retail stores at prices equal to 

Wilsons Leather’s assigned comparable values? Or was the stolen 

merchandise of lesser quality (e.g., made from a lower grade of leather, or 

4 Comparative-price advertising has been the subject of much legislation, 

regulation, and litigation because of concerns that advertised comparative 

prices do not correspond to prices actually charged for truly comparable 

products. (See, e.g., Bus. & Prof. Code, § 17501 [prohibiting misleading 

comparisons to “former price[s]”]; Cal. Code Regs., tit. 4, § 1301 [noting that 

regulated price comparisons often uses phrases such as “ ‘formerly -,’ 

‘regularly -,’ ‘usually -,’ ‘originally -,’ ‘reduced from ______,’ ‘was ______ 

now _______,’ [and] ‘____% off.’ ”]; 16 C.F.R. § 233.2(c) [advising that “the 

price advertised as being the price of comparable merchandise [should] not 

exceed the price at which such merchandise is being offered by representative 

retail outlets in the area”]; Shaulis v. Nordstrom, Inc. (1st Cir. 2017) 865 F.3d 

1, 5 [consumer class action alleging that “although price tags on Nordstrom 

Rack products contain both a sale price and a ‘Compare At’ price that 

purports to represent a bona fide price at which Nordstrom (or some other 

retailer) formerly sold those products, Nordstrom, in reality, sells goods 

manufactured by designers for exclusive sale at its Nordstrom Rack stores, 

which means that such items were never sold—or intended to be sold—at the 

‘Compare At’ prices advertised on the price tags.”]; John v. AM Retail Group, 

Inc. (S.D.Cal., Mar. 20, 2018, No. 17CV727-JAH (BGS)) 2018 WL 1400718, at 

*2 [consumer class action alleging that a sign advertising a Wilsons Leather 

“wallet as having a ‘Ticket’ price of $60 and a ‘Sale’ price of $23.99” was 

misleading because “the particular wallet . . . was not offered for sale at the 

‘Ticket’ price of $60.00 at any store in California, within ninety days before 

Plaintiff’s purchase.”].)
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blemished) and intended for sale exclusively at a discount outlet store? If not 

identical, why is the higher quality merchandise’s fair market value reflective 

of the stolen merchandise’s comparable value? If identical, was the 

merchandise ever offered for sale—let alone actually sold—by anyone at a 

price equal to Wilsons Leather’s assigned comparable value? Or was the 

comparable value merely illusory, intended to give consumers the impression 

they were getting a bargain? The evidence the prosecution introduced did not 

address any of these questions. Without answers to these types of questions

(e.g., by Pamela, another Wilsons Leather employee, or a qualified industry 

expert), the jury could only have speculated that the comparable values 

Wilsons Leather displayed on the tags attached to the stolen merchandise

reflected their fair market values.

Of course, jurors may generally use their common knowledge to 

determine the fair market value of property. But the only case the Attorney 

General cited to support this proposition involved jurors’ common knowledge 

that a two-year-old BMW generally has substantial value. (See Ortiz, supra, 

208 Cal.App.4th at pp. 1359, 1366.)5 Here, however, where the key issue at 

trial was the precise value of particular merchandise, we are not satisfied 

that the jurors’ common knowledge provided the required precision.

This is not to say the jury was required to use Wilsons Leather’s 

discounted sales prices. (See Lizarraga, 122 Cal.App.2d at p. 438 [fair 

market value is “not the value of the property to any particular individual”]; 

Pena, supra, 68 Cal.App.3d at p. 103 [“If some stores would underprice the 

5 The issue in Ortiz was not the precise determination of the BMW’s fair 

market value but, rather, whether the vehicle had sufficient value that the 

jury reasonably could infer the defendants committed a kidnapping with the 

intent to take the BMW. (Ortiz, supra, 208 Cal.App.4th at pp. 1365-1366.)
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items or would give them away that would not be representative of the fair 

market value.”]; Tijerina, supra, 1 Cal.3d at p. 45 [ “the price charged by a 

retail store from which merchandise is stolen” is “sufficient to establish the 

value of the merchandise,” absent proof to the contrary].) Notably, except for 

the stolen jacket (about $90) and gloves ($175 for seven pairs), the 

prosecution introduced no evidence establishing the discounted sales prices 

for the other stolen merchandise. Pamela expressly testified she was 

unaware of the discount percentages that applied to the stolen Karl Lagerfeld 

bags on the day of the theft, despite acknowledging a picture of the display 

shelves had a sign indicating a 60 percent discount rate. But if the 

prosecution wished to establish that the stolen products’ fair market values

were something other than the prices Wilsons Leather actually charged, it 

was incumbent upon the prosecution to introduce evidence establishing those 

values. It failed to do so.

Because substantial evidence does not support the jury’s finding that 

Grant stole property valued at more than $950, substantial evidence does not 

support his convictions for grand theft or burglary. Accordingly, we modify 

Grant’s conviction for grand theft to reflect a conviction for petty theft, and 

reverse his conviction for burglary. (See §§ 1181(6), 1260; People v. Navarro

(2007) 40 Cal.4th 668, 671 [“an appellate court that finds that insufficient 

evidence supports the conviction for a greater offense may, in lieu of granting 

a new trial, modify the judgment of conviction to reflect a conviction for a 

lesser included offense”]; People v. Simpson (1938) 26 Cal.App.2d 223, 229-

230 [reducing grand theft to petty theft].)
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III. DISPOSITION

The conviction on count 2 (burglary) is reversed. The conviction on 

count 1 (grand theft) is modified to reflect a conviction of petty theft, a 

misdemeanor. As modified, the judgment is affirmed as to count 1 (petty 

theft) and count 3 (battery). The matter is remanded to the trial court for 

resentencing.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.