P. v. Smith

Filed 3/22/07 P. v. Smith CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol C. Koppel, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI,  6.) Reversed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.

____________________________________

Michael Smith appeals from the judgment entered following a jury trial in which he was convicted of theft with a prior theft-related conviction and his admission that he had suffered a prior conviction under the Three Strikes law. He contends his trial counsel rendered ineffective assistance by conceding guilt in closing argument, the trial court had a sua sponte duty to instruct on mistake of fact and claim of right, the trial court abused its discretion in imposing an upper term sentence, and the upper term violated Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. We conclude there is merit in defendants claim of instructional error and reverse on that basis without reaching defendants other issues.

BACKGROUND

Defendant was charged with making a criminal threat (Pen. Code,  422, count 1), dissuading a victim from reporting a crime (id.,  136.1, subd. (c)(1), count 2), and petty theft with a prior theft-related conviction (id.,  666, count 3).

At trial, Felicia Young testified that on the afternoon of May 20, 2005, she stopped at a self-service gas station in the Antelope Valley and walked toward the store area to prepay for her gas. She noticed defendant in front of the store, asking people for money as they went inside. Defendant asked Young for change as she entered the store, and Young shook her head to indicate no. Young then entered the store and stood in line. When she got to the front she handed the clerk $15 cash, saying that it was for pump No. 8. Young then noticed that defendant was also inside the store. Young did not immediately go outside to pump her gas. Rather, she got back in line to buy a snack and remained in the store while she ate it. When Young left the store, she saw that defendant was pumping gas from pump No. 8 into a car that was sitting rear-bumper-to-rear-bumper with her car.

Young further testified that when she first saw defendant pumping gas, she thought he must have mistakenly thought that pump No. 8 was his. Young called out to defendant that he was on her pump. As defendant continued to pump a total $15 worth of gas into his car, Young took her cell phone from her purse to call 911. Defendant, who is Caucasian, started to yell racial epithets at Young, who is African-American, and threatened to shoot her if she called the police. Defendant also put the nozzle back in the pump and offered Young a couple of dollars, which he had in his hand. Young completed her call and went back into the store to await the police. Defendant also went into the store and warned Young not to follow him, threatening to shoot her if she did. Defendant further said, After all the work I did for you and you are not going to buy me any gas, as if to say he had did some work for [Young.] Defendant next got into his car and fled.

Young described the incident and gave defendants license number to officers who responded to the scene. Defendant was detained on May 24, 2005, waived his constitutional rights, and gave a statement to the police. A written police report of the statement provided: [Defendant] advised [the officer] that he was asking some people for money at the Shell station. When he contacted a female black (the victim) and asked her for money, she responded by telling him that she did not have any money and that she only had a credit card. He related that she also told him that she was on a particular pump number. When she went inside the gas station to pay for the gas he moved his car close enough to allow him access to that gas pump. He then started pumping gasoline into his car from that pump. When she came outside and saw him pumping gas into his car she became angry and immediately got on her cell phone to call the police. He offered to pay for the gas with as much money as he had. [Defendant] told [the officer] that when the victim pointed to her gas pump he believed she was telling him she would pay for gas for his car with her credit card. [The officer] asked [defendant] if he ever threatened the victim in any way. He denied that he made any threats to the victim.

Defendant did not present any evidence at trial.

The theme of defense counsels argument to the jury was that defendant misunderstood Young to have offered to pay for his gas with her credit card, and when Young saw what he was doing she got angry and decided to embellish her story by claiming that defendant had used racial epithets and physically threatened her. With respect to the charged threats, defense counsel focused on inconsistencies between Youngs testimony and the report of the police officer who took her statement regarding defendants offer to pay for some of the gas and what words defendant might have used and when he used them. The argument concluded with defense counsel stating: [Defendant], his life is in your hands. Carefully consider this evidence. Please dont rush to a decision, and I trust and Im confident that after you consider all the evidence youll return verdicts of not guilty, at the very least to count 1, and count 2, the criminal threats, and the intimidating a witness; because under these set of facts, under these circumstances, at best what happened was a theft based on a misunderstanding. So if you want to convict him of anything, convict him of theft.

The prosecutor started his closing argument with the response: If you believed that that was a misunderstanding, then you shouldnt convict the defendant because a theft requires a specific intent to permanently deprive. The prosecutor continued by giving reasons why Youngs testimony was credible.

During deliberations, the jury asked for and received copies of the police reports on Youngs and defendants statements. The jury found defendant guilty of theft with a prior theft-related conviction, not guilty of making a criminal threat, and deadlocked six-to-six on the charge of dissuading a victim, following which the court dismissed that charge. At sentencing, defendants motion to dismiss his strike conviction was denied and an upper term sentence of six years was imposed, the trial court find[ing] that the behavior of the defendant was egregious.

DISCUSSION

Defendant was convicted of theft with a prior theft-related conviction, an element of which is the specific intent to permanently deprive the owner of the stolen property. (See People v. Ortega (1998) 19 Cal.4th 686, 693; CALCRIM No. 1800.) His defense was that he lacked such intent because he honestly believed Young had given him permission take gas from pump No. 8 for his own car. This defense, which depending on the circumstances may be designated mistake of fact or claim of right, is valid in California. Although an intent to steal may ordinarily be inferred when one person takes the property of another, . . . proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state . . . that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. [Citation.] (People v. Tufunga (1999) 21 Cal.4th 935, 943.) A person who commits an act or makes an omission under a mistake of fact which disproves his or her criminal intent, is excluded from the class of persons who are capable of committing crimes. [Citation.] (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) [A] claim of right may be based on a mistake of fact regarding the defendants right to take property, as long as the belief is held in good faith. Thus, the defenses can overlap. (Id. at p. 1429.)

Defendant contends that the trial court had a sua sponte duty to instruct on this defense. We agree.

A trial courts duty to instruct, sua sponte, on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citations.] (People v. Maury (2003) 30 Cal.4th 342, 424.) The question of whether substantial evidence exists is one of law. (People v. Barnett (1998) 17 Cal.4th 1044, 1145. [T]here is no sua sponte duty to instruct on a defense if the evidence of that defense is minimal or insubstantial. [Citation.] (People v. Russell, supra, 144 Cal.App.4th at p. 1424.)

Here, defendant was both relying on a mistake of fact or claim of right defense and there was substantial evidence to support it. The Attorney General does not dispute this reliance but argues that the defense was not supported by substantial evidence because defendants statement to the officer who apprehended him was a mere cover for his felonious taking and in direct conflict with his statements at the scene. We cannot agree that a conflict was created by defendants failure to mention at the scene that he understood Young to have offered to pay for his gas. And to assert that defendants statement to the officer was a mere cover is to invade the fact-finding province of the jury. (People v. Barnett, supra, 17 Cal.4th at p. 1145 [trial court should not measure substantiality by weighing credibility of witnesses].) Accordingly, the trial court erred in failing to instruct, sua sponte, that defendants good faith belief that Young had offered to allow him to take gas from pump No. 8 negated a requisite element to theft. (See CALCRIM Nos. 1863 [Claim of Right], 3406 [Mistake of Fact].)

We assess prejudice under the standard of Peoplev.Watson (1956) 46 Cal.2d 818, 836. (See People v. Russell, supra, 144 Cal.App.4th 14311433.) In so doing, we note the obvious problem the jury had with Youngs credibility, as manifested by the acquittal on the criminal threat charge and the six-to-six split on the allegation of dissuading a witness. In addition, although we do not undertake to resolve defendants contention of ineffective assistance of counsel, we note the invitation in closing argument that if you want to convict [defendant] of anything, convict him of theft. And while the prosecutor responded by advising acquittal if there was a misunderstanding between defendant and Young, without instruction explaining that the prosecutors assessment was legally required, defendant may well have lost his only chance for the jury to know that if he had raised a reasonable doubt about the claimed misunderstanding, the prosecution would have failed to prove its case. Under these circumstances, defendants conviction of theft must be reversed.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.