Filed 12/11/17 P. v. Nunn CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ROGER KEITH NUNN,

Defendant and Appellant.
D071793



(Super. Ct. No. JCF36515)

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Roger Keith Nunn of attempted robbery and other related offenses after he pointed a replica firearm at his victim and threatened to kill her if she did not give him money. On appeal, Nunn contends the court erred in precluding his counsel from questioning the victim to expose her alleged motive to falsely accuse Nunn. He also contends he was prejudiced when the prosecutor improperly mischaracterized Nunn's testimony at trial during closing argument and the court erred when it overruled defense counsel's objection to the argument. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, Yolanda Noriega, an in-home support services caregiver, was working in the home of a client. As she walked outside to get the mail, defendant Nunn came out of hiding and confronted Noriega. Nunn was a former client of Noriega, who previously worked in his home as a caregiver. At the time, Nunn was 68 years old.
When Noriega asked Nunn what he was doing there, Nunn replied by simply stating: "give me some money." Noriega turned to walk back into the house and warned Nunn that if he did not leave, she would call the sheriff. Nunn then pulled out a handgun and threatened to kill Noriega if she did not give him some money. Scared for her life, Noriega ran through the garage and retreated into the house. Before she could close the door, Nunn pushed on the door to prevent Noriega from shutting him out. Noriega was eventually able to close and lock the door and call 911. While she was on the phone with the dispatcher, she heard banging noises from inside the garage where she left Nunn. After a deputy sheriff arrived, Noriega returned to the garage and discovered the windshield of her car had been shattered.
A deputy sheriff found Nunn outside a nearby convenience store. After Nunn was arrested, two sheriff deputies found a gun tucked into the back waistband of his pants, but a close inspection revealed it was a toy handgun with the orange tip colored black to make it look authentic. The gun was missing pieces that were found in the garage where Nunn confronted Noriega. Nunn admitted to the officers that he confronted Noriega with the gun and demanded that she give him her money.
Nunn testified at trial that he considered Noriega and her husband to be his best friends during the time period that she was working in his home. According to Nunn, he bought many gifts for Noriega and loaned her and her husband a large sum of money over the years.
Nunn admitted he confronted Noriega at her client's home, but claimed he only wanted to talk to her about repaying the loans. When Noriega denied owing him any money, he became angry and pulled out his gun "to get her attention." Nunn insisted that he never asked Noriega directly for money and did not tell the deputies that he asked for money.
However, during cross-examination, Nunn admitted that he asked Noriega for money. He also admitted that at the same time he was pointing the gun at Noriega, he threatened to kill her. He testified that he was so mad when Noriega left that he used the butt of his gun to hit the windshield of her car, causing it to break.
The jury found Nunn guilty of attempted robbery (Pen. Code, §§ 211, 664), making a criminal threat (§ 422, subd. (a)), and vandalism (§ 594, subd. (a)). The court sentenced Nunn to three years in prison, but suspended execution of sentence and placed Nunn on formal probation for a period of five years.
DISCUSSION
I
Nunn argues that the trial court erred in sustaining objections to two questions posed by his counsel to Noriega during cross-examination. As Nunn recognizes, we review the trial court's evidentiary rulings under the abuse of discretion standard of review. (People v. Brown (2003) 31 Cal.4th 518, 547.) If the court erred in excluding evidence, that error warrants reversal only if a defendant can demonstrate it is reasonably probable the jury would have reached a different result if the evidence had been admitted. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 752.)
The first ruling challenged by Nunn involves a question his counsel asked Noriega about whether her employment as an in-home caregiver prohibited her from receiving gifts from clients. The prosecutor objected, citing the "motion in limine." The court sustained the objection and Noriega did not answer. Second, defense counsel asked Noriega whether Nunn had given her and her husband thousands of dollars in loans. Again, the court sustained the prosecution's objection to the question on the basis of a motion in limine.
The prosecution's objections arose from the court's earlier order granting the People's motion in limine to exclude evidence regarding any money owed by Noriega or her husband to Nunn. As the trial court recognized, any such evidence was irrelevant to Nunn's culpability for attempted robbery: a defendant may not claim as a defense to robbery that the victim owed him money. (People v. Tufunga (1999) 21 Cal.4th 935, 954-956 (Tufunga).) Adopting the reasoning of an out-of-state court, our Supreme Court explained that although the "claim of right defense" may apply to efforts to retake specific property, it does not apply to money: " 'A debtor can owe another $150 but the $150 in the debtor's pocket is not the specific property of the creditor. One has the intention to steal when he takes money from another's possession against the possessor's consent even though he also intends to apply the stolen money to a debt. The efficacy of self-help by force to enforce a bona fide claim for money does not negate the intent to commit robbery. Can one break into a bank and take money so long as he does not take more than the balance in his savings or checking account? . . . A debt is a relationship and in respect to money seldom finds itself embedded in specific coins and currency of the realm. Consequently, taking money from a debtor by force to pay a debt is robbery. The creditor has no such right of appropriation and allocation.' " (Id. at pp. 954-955.)
On appeal, Nunn challenges the court's evidentiary rulings on two grounds. First, he asserts the trial court erred in sustaining the objections because the evidence sought was "crucial to appellant's defense that he lacked the intent to steal from Ms. Noriega." Nunn offers no argument as to why the holding in Tufunga would not apply here. As the Supreme Court stated, " '[o]ne has the intention to steal when he takes money from another's possession against the possessor's consent even though he also intends to apply the stolen money to a debt.' " (Tufunga, supra, 21 Cal.4th at pp. 954-955.) Nunn fails to cite any authority suggesting the holding in Tufunga has been abrogated. Because Tufunga establishes the current state of the law, the claim of right defense applies here to render irrelevant any evidence of money owed to Nunn to negate the element of intent. Accordingly, he establishes no abuse of discretion by the trial court.
For the first time on appeal, Nunn also contends Noriega's answers would have been relevant to the issue of her credibility. He asserts, without support, that Noriega's employment made it illegal for her to receive gifts and loans from a client. He believes that if the court allowed Noriega to answer the questions, she would have admitted she received gifts and loans from Nunn. This admission, he reasons, would demonstrate to the jury that Noriega had a reason to falsely claim to the responding deputy sheriff that Nunn demanded money rather than simply asking her about her plan to repay the loans.
Even assuming this claim is not forfeited because it was not raised below and can properly be considered for the first time on appeal, we see no prejudice to Nunn. Although the court sustained objections to these two specific questions, the People did not object to subsequent questions to Noriega regarding the topic of gifts and loans from Nunn. Shortly after the objections at issue were sustained, Nunn's counsel asked Noriega whether Nunn ever bought her gifts, which Noriega denied. During her redirect examination, Noriega also testified that she and her husband did not owe any money to Nunn at the time of the attempted robbery.
When considering Noriega's testimony in its entirety, it is evident that the trial court's rulings on the two objections at issue had no effect on the evidence introduced at trial because regardless of the court's rulings, the same evidence was adduced at trial. Despite its irrelevance, and in addition to his own extensive testimony on this topic, Nunn was able to elicit testimony from Noriega regarding gifts and outstanding loans. Thus, Nunn fails to demonstrate any prejudice resulting from the trial court's rulings.
II
Nunn next contends the prosecutor's closing argument included a mischaracterization of Nunn's testimony at trial and the court erred in "validating" the prosecution's misstatement. A review of the closing statement reveals this claim is without merit.
During closing argument, the prosecutor stated "we learned finally, on cross-examination, that [Nunn] was admitting that he had threatened to kill Ms. Noriega while pointing a gun at her, because he wanted to scare her into giving him money, or into paying him." Defense counsel objected, claiming the prosecutor was misstating the testimony, but the court overruled the objection and observed "that's the court's recollection of the testimony, but the jurors will rely on their own recollection."
On appeal, Nunn contends he offered no such testimony during his cross-examination. Instead, he contends the threat to kill Noriega was not made at the same time he was pointing a gun at her and was not intended to compel payment, but only to make Noriega "hold up so they could talk."
These contentions are belied by a review of Nunn's testimony during cross-examination. The prosecutor directly asked Nunn about his confrontation of Noriega and his intent. In response to the question, "So you were asking her for money?," Nunn responded with a simple "Yes." Nunn also admitted that when he was arrested, he told the sheriff's deputy that while he was pointing the gun at Noriega, he threatened to kill her. At another point in his cross-examination, Nunn expressed some uncertainty regarding the precise sequence of events, but admitted that while he stood in the garage as Noriega tried to run away, he pointed a gun at her and threatened to kill her.
Considering his complete testimony on cross-examination, Nunn admitted he asked Noriega for money and, after she refused, he became angry, pulled out his replica gun, and threatened to kill her. The prosecutor's statement during closing argument summarized all of these statements by Nunn and did not result in any obvious misstatement.
Although Nunn offered contradictory testimony during his direct examination, it was not improper for the prosecutor to rely on Nunn's own admissions during cross-examination. "[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine. [Citation.] The prosecutor may not, however, argue facts or inferences not based on the evidence presented." (People v. Lewis (1990) 50 Cal.3d 262, 283.) Here, the prosecutor's statements fell within the range of permissible argument and she did not argue facts or inferences not based on Nunn's own testimony. Accordingly, because there was no misstatement of the evidence, there was no prosecutorial misconduct and no error by the trial court in denying an objection to the prosecutor's fair representation of the evidence.
DISPOSITION
The judgment is affirmed.


HALLER, Acting P. J.

WE CONCUR:




O'ROURKE, J.




IRION, J.