Hearsay Exception: Circumstantial Price Tag Testimony

In late January 2021, at about 1:40 a.m., a Los Angeles County Sheriff’s Deputy was on a routine patrol in the City of Industry when she noticed a gate was open at the Comptree warehouse on Brea Canyon Road.

The deputy drove into the parking lot to investigate and saw a van with an interior light on backed up to a loading dock next to a 45-foot freight trailer. 

She approached the van and saw Jose Portillo loading boxes labeled “Dialtech Selective Dumbbell” into the back of the van.  Mr. Portillo was extremely nervous.  The deputy determined the boxes in the van were similar to those inside the trailer. 

She determined that Portillo was stealing the Dialtech Selective Dumbbells directly from the freight trailer, which had been parked for workers in the Comptree warehouse to unload later.  Portillo, however, opened up the freight trailer and took the items into his van.  She arrested Mr. Portillo.  She found he had taken fifteen boxes from the trailer and placed them in his van.

After arresting Mr. Portillo, the deputy called in for assistance and another suspect, Orlando Portillo, the brother of Jose, was found in the parking lot hiding under a trailer.

A surveillance video later recovered showed both Portillos removing the dumbbell boxes from the freight trailer and loading them into the van.

The Los Angeles District Attorney’s office filed a grand theft (Penal Code § 487(a)) against both brothers.  At trial a district attorney asked the owner of the dumbbells what the value of the fifteen boxes was.  He said $7,500 and explained that he reached that by going to the Amazon. Com website and entering the manufacturing number, as well as doing the same thing on the Walmart website (both listed the boxes at $357 per box), as well as another website called “Gym and Fitness,” which listed a price of $497 per box.

The jury found both brothers guilty of grand theft. 

At sentencing, Judge Victor Martinez placed both brothers on two years of formal probation with an obligation that they serve 180 days in Los Angeles County Jail.

The brothers then appealed their convictions to the Second Appellate District Court in Los Angeles, contending there was insufficient evidence to support their convictions because the evidence failed to establish the value of the items exceeded $950. 

The only evidence of the dumbbell’s value was the testimony of the dumbbell owner who testified to the prices listed on three retailer’s websites for the same product.  The brothers argued this was inadmissible hearsay because the owner had no personal knowledge of the value and it was offered for the truth of the dumbbell value.

The Second Appellate District Court sustained the verdicts, finding that evidence of a retail price for a stolen item, whether based on an online listing or a brick-and-mortar store price tag, is admissible for the nonhearsay purpose of showing that a retailer is advertising the item for a specified price in the marketplace.

This price, in turn, is circumstantial evidence of the fair market value of the item, defined under California law as the highest price obtainable in the marketplace between a willing buyer and a willing seller.

A defendant is always free to introduce evidence that the retailer is not willing to sell the item for this listed price (i.e., it is mismarked or unavailable), or evidence of lower prices from other retailers.  However, this issue goes to the weight of the evidence, not admissibility.  

Therefore, the three online prices were admissible as circumstantial evidence of the fair market value of the dumbbells. 

We present this summary because, while we handle a fair number of theft cases at Greg Hill & Associates, the price of the items is usually marked on the items, for example, in a shoplifting case.  Moreover, the price of the item may not be relevant because it is recovered and the total value of the stolen items is less than $950.  However, when grand theft above $950 is alleged, it is important to understand how the value of the items may and may not be determined, which this case clarifies.