Metropolitan News-Enterprise


Thursday, August 31, 2017


Page 1


Value of Item Is the Price Marked, Plus Sales Tax—Court of Appeal

Finds That Statute Rendering a Theft ‘Shoplifting’ Does Not Apply Where the Value Is in Excess of $950, Taking Into Account Full Amount to Be Paid to the Merchant


By a MetNews Staff Writer


The Court of Appeal for this district yesterday held, in a case of first impression, that although the price marked on a cellphone the defendant pilfered was less than $950, he was guilty of second degree burglary, not shoplifting, because the value of the item was nearly $1,000 when sales tax is added.

Div. Eight, in an opinion by Acting Justice Douglas W. Sortino, a Los Angeles Superior Court judge sitting on assignment, affirmed the judgment in all respects except to add 89 days of presentence conduct credit.

Sortino acknowledged that under Proposition 47, enacted by voters in 2016, the crime is “shoplifting,” a misdemeanor, where a person enters a commercial establish­ment during business hours and “the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” He said that defendant Troy Earl Seals would be guilty of that lesser crime if the phone were valued at $899, as stated on the price tag.

However, he said, that’s not what a customer would have to pay for it because sales tax would be added.

“There was no evidence that, excluding sales tax,” the retailer “ever sold the phone for more than $950,” Sortino said. “To convict Seals of burglary, the jury had to include sales tax in its determination of the value of the phone.”

Civil Case Noted

The jurist pointed to the 1977 Court of Appeal decision in Xerox Corp. v. County of Orange. There, it was held that the fair market value of personal property, for tax purposes, included the sales tax.

The court said, in that opinion:

“[W]here price is the basis of value, the sales tax is an element of value. The ultimate price the informed seller and buyer agree upon includes the amount of tax reimbursement.”

In yesterday’s opinion, Sortino wrote:

“Although Xerox arose in a different context from this case we find the court’s reasoning relevant and persuasive….

“Given the nature of the sales tax in California, sales tax reimbursement may properly be viewed as part of the price a willing buyer and seller, neither of whom is forced to act, agree upon. A seller is not required to seek sales tax reimbursement from the buyer. As a result, as the Xerox court noted, the sales tax is similar to other factors retailers take into consideration to increase the price of an item, such as overhead and advertising.”

‘Ultimate Price’

Sortino went on to say:

“In adding sales tax reimbursement to the price of an item, the retailer is not merely collecting a tax on behalf of the state. Instead, the retailer is passing on a cost—for which only it is responsible—to the buyer. Further, when a retailer adds an amount for sales tax reimbursement to the total price of an item, that ultimate price is the highest price to which the willing and informed buyer and seller agree.”

Aside from being convicted of second degree burglary, Seals was convicted of second degree robbery. After he left the store, he was pursued by the manager, and pulled out a nine-inch knife.

Sortino found that substantial evidence supported the conviction.

Rejecting Seals’s contention that the sentence imposed by Los Angeles Superior Court Judge Carol H. Rehm Jr. of 25 years to life for robbery constitutes cruel and unusual punishment, Sortino said:

“Seals did not merely take a cell phone; the jury found him guilty of robbery, a finding supported by the evidence of Seals’s conduct during the commission of the crime. Further, his sentence was the result of his prior strikes, which reflected his long, serious criminal record.”

The case is People v. Seals, B271109.


Copyright 2017, Metropolitan News Company