Brief Bank # B-862 (Re: F 4.001 n2 [Claim Of Right: Improper To Define As A Defense] / F 14.50 n17 Burglary: Claim Of Right As Defense Theory].)
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Date of Brief: July 2000
II. THE TRIAL COURT ERRED PREJUDICIALLY AS TO COUNTS 1 AND 2, BY PERMITTING THE JURY TO FIND APPELLANT COMMITTED A BURGLARY BASED ON A MENTAL STATE LEGALLY INSUFFICIENT FOR AN ESSENTIAL ELEMENT OF BURGLARY
One of the defense’s theories was what is sometimes called a “claim of right defense.” As appellant will show, a “claim of right defense” is not actually a defense. Rather, it is a mental state inconsistent with intent to steal. In turn, intent to steal was an essential element of the charged burglary in Count 2, the burglary felony-murder in Count 1, and the burglary-based aiding/abetting instructions in Count 1. Thus, the instructions should have enabled appellant to show his mental state was inconsistent with intent to steal, or there was reasonable doubt.
That was particularly so because in the defense against the charge of burglary, which was also the basis of the aiding and abetting instructions for murder in Count 1, there was a great deal of evidence that appellant’s intent was not to take property that he knew belonged to Mr. M. Rather, his intent was to help Mr. H reclaim property that belonged to Mr. H, or money Mr. M received from selling Mr. H’s property, which money also belonged to Mr. H under the law. (See post, pp. -.)
Aiding and abetting a burglary requires knowledge the perpetrator intends to take property that doesn’t belong to him, and the intent to assist the perpetrator in the unlawful taking. (People v. Beeman (1984) 35 Cal.3d 547, 560.) The court’s instructions should have required the jury to acquit Mr. Doe if it concluded Mr. Doe believed (whether correctly or not, see RT 1199) that he was helping Mr. H take property which by law belonged to Mr. H, or if it had reasonable doubt.
On this record, the overwhelming likelihood is that any and all of the trial court’s erroneous instructions had a huge impact on appellant’s defense. They were prejudicial under any legal standard, and certainly under the applicable Chapman standard. The judgment as to Counts 1 and 2 should be reversed.
Our Supreme Court has long required that for claims of instructional error, such as this one, the evidence must be taken favorably to the claim of error (i.e., to the appellant). (See discussion and cases cited ante, pp. -.)
B. The Nature Of A “Claim Of Right Defense”
As noted above, “claim of right” is often called a “defense,” but it is not really one. It is a mental state inconsistent with the essential element of intent to steal. (People v. Tufunga, supra, 21 Cal.4th at pp. 938-939.) “Claim of right” was recently reiterated by our Supreme Court as a valid legal doctrine in California, a mental state inconsistent with the element of intent to steal, in non-robbery cases. (Id., 21 Cal.4th at pp. 938-939, 942-943.)
Because the People burden of proving each element of an offense beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 364), evidence of a good-faith “claim of right” raises an issue of whether the defendant had the element of intent to steal. (Ante.) The prosecution must prove the element of intent to steal beyond a reasonable doubt (see In re Winship (1970) 397 U.S. 358, 364), even if that requires proving beyond a reasonable doubt that the defendant did not believe in good faith that the property he intended to take was his own. Theft requires taking property that is not one’s own. (People v. Tufunga, supra, 21 Cal.4th at pp. 945-948.) A fortiori, a defendant does not intend to commit theft if in good faith he believes the property being taken is his own–or, to like effect, that he believes in good faith the property being taken belongs to a person who has authorized him to take it.
In a crime alleging intent to steal, proof of honest belief that one is reclaiming property in which one has a claim of right negates the intent element. (People v. Tufunga, supra, 21 Cal.4th at p. 953 & fn. 5; People v. Rosen (1938) 11 Cal.2d 147, 149-151; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1020.) This is so even if the subjective, honest belief is mistaken. (People v. Tufunga, supra, 21 Cal.4th at pp. 938, 950.)
Conceptually, that should be self-evident. An essential element of theft is an unlawful intent to effect a permanent deprivation of personal property “of another.” (Pen. Code, § 484 [“the personal property of another . . . .”]; People v. Green (1980) 27 Cal.3d 1, 57.) If a person believes he is reclaiming his own property, he lacks the intent to steal property that lawfully belongs to another. (See Tufunga, supra, 21 Cal.4th at p. 953 & fn. 5.)
Similarly, if a person believes he is carrying away property the owner of the property authorized him to carry away, he also has no intent to effect an unlawful deprivation of personal property of another. There is again no intent to steal. (Pen. Code, § 484; accord, e.g., People v. Stewart (1976) 16 Cal.3d 133 [claim of right defense to theft charge permitted, when defendant manager claimed company owner permitted him to withdraw funds for personal use]; People v. Jacques (1955) 137 Cal.App.2d 823, 836-838.)
Even if the defendant is mistaken on whose property it is, the issue is the element of intent to take property of another unlawfully. That element is not met by a person who believes in good faith he is taking property which, by law, he is permitted to take (i.e., he believes the property belongs to him, or to a person who authorized him to take it), or if the jury has reasonable doubt. The jury was so instructed. (RT 1199-1200.)
Of course, that doesn’t mean a person who intends to reclaim property he believes to be his own, or to belong to another who has given permission, commits no crime. A bona fide belief in a possessory right only negates intent to steal. The defendant is still subject to punishment for any other crime he committed. (People v. Rosen, supra, 11 Cal.2d at p. 151.)
2. “Claim Of Right,” In Alleged Theft-Related Offenses That Do Not Involve Intent To Use Force Or Fear Against A Person
Recently, our Supreme Court held that claim of right cannot be asserted in a case alleging robbery, if the taking is to collect an alleged debt from a person, and involves force or fear in the taking. (People v. Tufunga, supra, 21 Cal.4th at pp. 953-956 [overruling, on that issue only, People v. Butler (1967) 65 Cal.2d 569].) However, even in a robbery case, claim of right is still valid when the defendant reclaims specific property he reasonably believes is his own. (People v. Tufunga, supra, 21 Cal.4th at p. 948.)
In the same recent opinion, the Supreme Court reaffirmed claim of right in non-robbery cases. (Id. at pp. 945-953.) Claim of right thus remains valid in a non-robbery case for a defendant who takes property he reasonably believes is his (or reasonably believes its lawful owner authorized him to take), since that belief is inconsistent with an intent to steal. (Id. at p. 957 & fn. 5.) So too, the reasoning of People v. Butler, supra, and Butler‘s conclusions on what is and is not within the claim of right doctrine, remain valid in a non-robbery case. (Tufunga, supra, 21 Cal.4th at pp. 950-953.) The current case, of course, is a non-robbery case.
The only portion of Butler which Tufunga overruled was the holding that claim of right could be used in a robbery case, involving a taking by force or violence. The Supreme Court’s last opinions explaining claim of right before Tufunga were People v. Stewart, supra, 16 Cal.3d 133, and Butler. Therefore, Butler remains binding and valid to the extent Tufunga didn’t overrule it. And in this case, Butler is binding and valid in all ways, as the Tufunga opinion–which postdates the events in this case by 4 years–does not overrule any part of Butler retroactively. (People v. Sakarias (2000) 22 Cal.4th 596, 622.)
C. The Trial Court’s Erroneous Claim Of Right Instructions
The trial court gave aiding and abetting instructions, CALJIC Nos. 3.00, 3.01 and 3.02. (RT 1192-1193.) It also gave standard instructions on burglary based on intent to commit theft, CALJIC No. 14.50. (RT 1211.) However, it put two different erroneous restrictions on the claim of right instructions requested by defense counsel, which significantly impaired the defense’s ability to present claim of right as nullifying the intent element of the charged theft offense.
1. The Dictionary Definition Of “Openly And Avowedly,” Given The Jury Here, Is An Erroneous Legal Standard
The trial court gave prosecution instructions that for a valid claim of right, “[T]he defendant must take the property openly and avowedly. If he attempts to conceal the taking, either when it occurs or after it is discovered, the defense is unavailable. . . . The word avowedly as used in the previous instruction means in an open manner with frank acknowledgment.” (RT 1200.) The defense objected. (RT 1160-1161.)
As given, those instructions violated the Fourteenth Amendment requirement that the prosecution has the burden of proving every essential element of a charged offense, beyond a reasonable doubt. (In re Winship, supra, 397 U.S. at p. 364.) It did so by putting legally erroneous restrictions on appellant’s ability to defend by showing a good-faith, honest belief in a claim of right negated the essential element of intent to steal.
The prosecution got its definition of “avowed” as “open manner and frank acknowledgment,” as the trial court instructed (RT 1200), from a (nonlegal) dictionary. (CT 1003.)
It was error for the court to give that instruction, as the legal term “open and avowed” does not have that lay meaning. There is no legal requirement that a taking of one’s own property must be in broad daylight in full view of third persons, in order not to be theft. In particular, if a person takes property to which he has the only legally proper claim of title and the possessor has no proper claim, that is never theft, no matter what time of day the property is taken or who is watching.
There was strong evidence Mr. Doe was told and believed he was only helping Mr. H retrieve his own property. (See ante, pp. -.) An owner of property cannot commit a theft crime in reclaiming his own property–even if he takes it at night, with no one home–because legally, one cannot be guilty of stealing one’s own property, at any time or place. Nor can one be guilty of stealing property the owner has authorized him to take. Nor can one be guilty of theft if he honestly believes one of the above scenarios is the facts. (See ante, pp. -.)
That is true irrespective of whether the owner of the property retakes his property “openly and avowedly” as the dictionary defines it, i.e., as it was defined in the erroneous instruction. In that situation, the dictionary definitions of “open” and “avowed” are simply irrelevant. For example, an owner might trespass onto another’s land to reclaim his own property at night with no one home, for any of a number of reasons–he doesn’t want a confrontation, the owner won’t talk to him, he fears the owner, he fears a possible vicious animal, or many others. It doesn’t matter. No matter where or how an owner reclaims his own property, it is still the owner’s property. He commits no theft crime by repossessing it.
The “openness” of the appropriation of property, used in the lay sense above, might sometimes be relevant in an evidentiary way. For example, if a company employee doesn’t notify the company’s bookkeeper before writing himself checks on the company account, it may be a piece of evidence that the jury could consider as working against a claim of right defense. But it would just be a piece of evidence like any other, by no means legally dispositive. That was how it was treated–as an evidentiary, and not a legally dispositive matter–in People v. Stewart, supra, 16 Cal.3d at p. 141 [“lack of concealment as evidence of good faith belief in authority and lack of fraudulent intent” was “a correct statement of the law”].)
Plenty of cases have approved a claim of right defense to a theft charge, when the act of taking didn’t meet the dictionary definition of “open and avowed” given by the trial court here, but there was other evidence that the claim of right was honest. A few examples are: People v. Stewart, supra, 16 Cal.3d at pp. 138, 140-141 [defendant manager withdrew company funds for personal use and didn’t notify anyone in advance, but didn’t try to hide the withdrawals either, and other evidence also supported honesty of claim]; People v. Photo (1941) 45 Cal.App.2d 345, 349-350 [defendant drove off with truck of oranges late at night out of view, but there was other evidence his claim of right was honest]; People v. Sheasbey (1927) 82 Cal.App. 459, 462 [defendant selected a day to repossess property under allegedly defaulted contract when he didn’t think possessor would be at home, to try to avoid possible confrontation]; United States v. Heathershaw (8th Cir. 1996) 81 F.3d 765, 766-767 [defendant took portions of fence without notifying anyone of claim that fence was on his property, but also was building a new fence]; State v. Varszegi (1993) 33 Conn.App. 368 [635 A.2d 816] [defendant entered and took tenant’s property by picking the lock on the office door, under purported authority of lease clause].)
The above is dispositive. But beyond that, appellant notes that the phrase “openly and avowedly” is found in Penal Code section 511, as part of a statutory claim of right defense to embezzlement enacted in 1872. It is implausible that the 1872 Legislature intended “open and avowed” to mean what the prosecution claimed here, in an embezzlement case.
A typical case where the prosecution would charge embezzlement and the defense could invoke section 511 would be a case where the defendant wrote himself checks on a company account, but claimed he had permission. The defendant could invoke claim of right even if his physical act of writing the checks–the original act of appropriating the property–was in his office with no one there. He would not be required to take a company checkbook into a full lunchroom and announce to all there, “Now, see, I am writing this check to myself,” as the prosecution’s dictionary theory of “open and avowed” required. (See, e.g., People v. Stewart, supra, 16 Cal.3d at pp. 138-140.)
Legally, any “openly and avowedly” requirement means at most that the defendant acts in good faith, with an honest belief in his claim of title or right, and without attempting to conceal the fact that he is appropriating the property. (See, e.g., id. at pp. 139-141.) It doesn’t mean the act of appropriation must physically take place in full view of the world. That is evinced by claim of right cases where the act of appropriating property was done physically outside of the full view of the world. (See, e.g., cases discussed ante, p. .)
In the end, though, the bottom line remains: If a person subjectively but honestly believes he is taking his own property, he does not have the specific intent to carry away the property of another required for of theft.
In this case, a properly instructed jury could easily have found Mr. Doe’s intent and actions were perfectly consistent with his belief in facts constituting claim of right by Mr. H, based on (inter alia) the factors discussed ante, pp. -. Even if Mr. H also had subjective intent to burglarize Mr. M, a properly instructed jury could easily have concluded Mr. Doe didn’t know that, or at least that there was reasonable doubt.
Furthermore, there was no evidence Mr. Doe believed Mr. H was making an effort to hide his ownership of his own property. As in cases such as Stewart, Photo, Sheasbey, Heathershaw and Varszegi (ante, p. ), even if (based on what Mr. Doe believed) the act of Mr. H taking property was not to be in full view of others, what mattered–assuming the law has an “open and avowed” requirement–was that there was no evidence Mr. Doe thought the fact of Mr. H taking his own property would be concealed.
The trial court thus erred in giving this instruction, which improperly restricted appellant’s ability to proffer claim of right–and thus negation of the essential element of intent–if the jury found facts where it would have been warranted.
The error was prejudicial under state law and the Fourteenth Amendment, as it erroneously permitted the jury to find theft under facts which, legally, would not have been theft. That requires reversal, because it cannot be determined whether the jury convicted appellant on a legally valid or a legally invalid theory. (See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670; Yates v. United States (1957) 354 U.S. 298, 311-312.)
The error was also prejudicial under any standard on the strength of the defense case, for the reasons ante, pp. -.
Furthermore, the prosecution capitalized on the erroneous instructions, another factor showing prejudice from error under any standard (e.g., People v. Davenport (1985) 41 Cal.3d 247, 287), by making the lay definition argument that the legal error allowed. The prosecution argued as a matter of law that Mr. Doe did not intend to take Mr. H’s property “openly and avowedly” because he went to Mr. M’s house at night without permission when Mr. M wasn’t home. (RT 1250-1251, 1295.) That was not a correct legal argument, since who was or wasn’t home or the time of day is not the legal issue; the legal issue should have been whether Mr. Doe believed he was taking property that by law belonged to Mr. H. But it was an argument the trial court’s instructions erroneously permitted.
Finally, the error was prejudicial on the murder (Count 1) as well as the burglary (Count 2) charge, for at least two reasons. First, since the jury was erroneously permitted to find appellant guilty of burglary under circumstances that legally wouldn’t be burglary, that significantly increased the likelihood the jury would find appellant guilty of murder as a natural and probable consequence of a burglary the jury wouldn’t have found under proper instructions, whereas the likelihood of murder as a natural and probable consequence of a mere trespass (with a claim of right) would be far less. Second, the instructions were also erroneous on the charge of burglary-murder; and thus, a court “cannot determine whether or not the [error affecting burglary-murder] induced the jury to find [appellant] guilty of the less serious offense of [second-degree murder] rather than continue to debate his innocence.” (Price v. Georgia (1970) 398 U.S. 323, 331-332 [unanimous opinion, per Burger, C.J.]; accord, e.g., People v. Doolittle (1972) 23 Cal.App.3d 14, 22; Leonard v. People (1962) 149 Colo. 360 [369 P.2d 54, 59]; People v. Mayo (1979) 48 N.Y.2d 245, 250 [397 N.E.2d 1166]; Harrison v. State (1977) 143 Ga.App. 833 [240 S.E.2d 263, 265-266]; People v. Marshall (1962) 366 Mich. 498 [115 N.W.2d 309]; Pugliese v. Perrin (1st Cir. 1984) 731 F.2d 85.)
The judgment should be reversed as to Counts 1 and 2.
2. “Openly And Avowedly” Is Not A Requirement For Claim Of Right In A Non-Embezzlement Case
In light of the confusion that the phase “openly and avowedly” could (and did here) generate in a non-embezzlement larceny case, as discussed above, one might ask why the law would impose that requirement in such a case. The answer is that there is no such legal requirement.
Our Supreme Court has stated the claim of right doctrine as follows:
A person taking goods which he honestly believes are his own, under a claim of title, is not guilty of larceny (People v. Devine [(1892)] 95 Cal. 227), nor of embezzlement if the property is openly and avowedly taken under a claim of title preferred in good faith (Pen. Code, sec. 511).
(Burke v. Watts (1922) 188 Cal. 118, 125.) This Supreme Court opinion, like all others, is binding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Certainly if a defendant meets the criteria of Penal Code section 511 in a non-embezzlement larceny case, he may take advantage of this statutory definition. (See People v. Tufunga, supra, 21 Cal.4th at p. 952, fn. 4.) But section 511 is not the only claim of right defense to a charge of larceny.
The Supreme Court opinion in Burke v. Watts, supra, cites Penal Code section 511 for a claim of right defense in embezzlement cases, but does not cite section 511 as authority for the defense in non-embezzlement larceny cases. For the latter, it cites People v. Devine, supra, 95 Cal. 227, which established claim of right as a defense based on common-law authority and no statutes. (Id. at pp. 229-230.) The common-law defense is the same as the one appellant has emphasized throughout: An honest claim of right negates an essential element of larceny. (See ante, pp. -.) In that context, section 511 is not the original authority for a claim of right defense in non-embezzlement larceny cases. Since only section 511 has the “open and avowed” restriction, the concept of “open and avowed” is inapplicable to non-embezzlement larceny cases. It is not part of claim of right as a non-embezzlement larceny defense as described in Burke or Devine.
Of course, in light of Penal Code section 490a, a defendant nowadays probably can use section 511 as a statutory claim of right defense, in a non-embezzlement larceny case. (See Tufunga, supra, 21 Cal.4th at p. 952, fn. 4.) But based on Burke v. Watts and People v. Devine, he doesn’t have to.
The law has no “openly and avowedly” restriction on claim of right in non-embezzlement larceny cases. The trial court erred in creating one. The error was prejudicial for the reasons ante, pp. -.
3. The “Self-Help Is Not A Defense” Instruction Was Error
This instruction requested by the prosecution (RT 1151) was: “A person may not, however, take the property of another in order to offset or satisfy a perceived debt . . . owed to him by another person, or to expedite the return of other property held by such other person. Such self-help is not authorized by law and is not a defense to theft.” (Given at RT 1199:13-18.)
That instruction was in error for multiple reasons.
To begin with, “self-help” is the core of claim of right. But contrary to the instruction, claim of right is the law in this state. (People v. Tufunga, supra, 21 Cal.4th at p. 953.) The instruction erred in saying self-help was not a defense.
Furthermore, based on the instructions given the jury, it was wrong for the trial court to instruct that “tak[ing] the property of another in order to offset or satisfy a perceived debt . . . owed to him by such other person” can never be within the claim of right defense. There are undoubtedly some “perceived debts” that do not fall within claim of right. (See, e.g., cases cited in People v. Tufunga, supra, 21 Cal.4th at p. 953, fn. 5.) But the trial court categorically instructed the jury that a “perceived debt” could never be within claim of right. That is plainly erroneous.
Direct precedent from our Supreme Court has permitted the defense to assert claim of right in much weaker cases of “perceived debts” than this one. In People v. Eastman (1888) 77 Cal. 171, the defense was that the defendant took his own pledged property back from another, to satisfy that person’s debt to him for wages. In People v. Butler, supra, 65 Cal.2d 171, which is still good law on what is needed to establish claim of right (and which is good law in all ways in this case, see People v. Sakarias, supra, 22 Cal.4th at p. 622), the defense was that the defendant took money from a former employer to satisfy the latter’s debt to him for unpaid wages.
This case is far stronger than those, and legally, should have permitted a claim of right defense for a claimed debt from Mr. M to Mr. H. For here, based on the evidence of what Mr. Doe believed, the “perceived debt” from Mr. M to Mr. H was due to Mr. M committing acts that amounted to theft of Mr. H’s property. In that event, Mr. H would not have committed theft in reclaiming his own property, or money derived from Mr. M’s sale of Mr. H’s property. Nor would Mr. Doe have committed theft in reclaiming the same property or money at the direction of its owner, Mr. H.
Where a debtor obtains money from disposing of another’s property without permission, the debtor’s unlawful conversion doesn’t give him title to the property, and it doesn’t give him title to the money obtained from the property. The owner retains title to both–the property, and any money the debtor obtained from selling the property. (E.g., Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072; People v. Cannon (1947) 77 Cal.App.2d 678, 690-691; Haigler v. Donnelly (1941) 18 Cal.2d 674, 681.)
In other words, if an owner of property takes money less than or equal to an amount wrongfully obtained by a debtor who sold the owner’s property, the owner is merely repossessing money which is his and not the debtor’s. (Ante.) While it is sometimes said as a rule of thumb that money cannot be converted unless a specific sum capable of identification is involved, that isn’t so when an agent improperly converts a principal’s property by selling it. Then, the proceeds from the sale lawfully belong to the principal, and “it is not necessary that each coin or bill be earmarked. When an agent is legally required to turn over to a principal a definite sum received by him on the principal’s account, [there is a] conversion. . . .” (Haigler v. Donnelly, supra, 18 Cal.2d at p. 681.)
In that situation, the debtor converts the owner’s property, and thus commits conversion or embezzlement by retaining the owner’s property, or sums obtained from selling that property. (People v. Riley (1963) 217 Cal.App.2d 11, 17-18; People v. Martin (1957) 153 Cal.App.2d 275, 283-284; People v. McClain (1956) 140 Cal.App.2d 899, 900; see Pen. Code, § 506.) That is true even if the debtor intends to return the funds, or to deprive the owner of the property only temporarily. (People v. Britz (1971) 17 Cal.App.3d 743, 751.) Embezzlement is a form of theft (Pen. Code, § 490a; People v. Artis (1993) 20 Cal.App.4th 1024, 1026), and a thief never gains any title. (Naftzger v. American Numismatic Society (1996) 42 Cal.App.4th 421, 427-428; Karageris v. Karageris (1956) 145 Cal.App.2d 556, 559.) The debtor, the thief, obtains no title to the converted property or any money obtained from selling it. Thus, the owner of the property commits no theft in repossessing the property, or money the debtor got from unlawfully selling it and pocketing the proceeds. (Cf. People v. Rosen, supra, 11 Cal.2d at pp. 150-152 [claim of right available for retaking losses in illegal gambling game, as illegal game transferred no title to funds].)
Under those circumstances, claim of right is certainly available for a “perceived debt.” The debtor owes the owner a debt by converting his property, and pocketing the proceeds. Claim of right is an available defense for any theft charge against the owner, because the owner has the only valid title to those proceeds, and the debtor has none.
Had the jury been given any of these established principles, it might have helped mitigate the trial court’s error in giving the “no claim of right for perceived debt” instruction. But that didn’t happen. And certainly, the jury had no way of knowing that there were cases in which claim of right was available for a “perceived debt,” due to the error discussed herein. The instruction that claim of right is never legally permissible for a debt was legally erroneous, for the reasons above.
There was ample evidence that those were the circumstances of this case. Taking the evidence favorably to the defendant, as is required (ante, pp. -), the evidence fully supported a conclusion that Mr. Doe honestly believed the above had occurred, under the circumstances of the case (see ante, pp. -). Based on what Mr. H told Mr. Doe, Mr. M had possession of some of Mr. H’s building materials, and had converted others by selling them without Mr. H’s permission. (RT 921, 927, 1005, 1012-15, 1024-25.) (Although Mr. Doe’s belief was all that mattered legally, Mr. H’s statement apparently was founded in reality, since a friend of Mr. M’s said Mr. M had in fact sold building materials of Mr. H’s. (RT 907-908.)) Based on that, Mr. H would have had the legal right to reclaim his building materials, and would also have had the legal right to any funds Mr. M obtained from selling those materials, to satisfy Mr. M’s debt to Mr. H. And Mr. Doe would not have committed theft, or burglary, by helping Mr. H reclaim his materials or funds in satisfaction of that debt.
The jury, however, was instructed to the contrary, that claim of right never applies to a person who takes money or property to satisfy “an actual or perceived debt.” On the instructions given, the jury would have rejected claim of right if it found the above state of facts or had reasonable doubt. It would have done so wrongly, for that is a legally valid “claim of right defense.” The instructions thus erroneously permitted the jury to find theft under facts which, legally, would not have been theft. That requires reversal under state law and the Fourteenth Amendment, as there is no way to know whether the jury convicted appellant on a legally valid or invalid theory. (See, e.g., People v. Guiton, supra, 4 Cal.4th at pp. 1128-1129; Suniga v. Bunnell, supra, 998 F.2d at pp. 668-670; Yates v. United States, supra, 354 U.S. at pp. 311-312.)
In any event, the error is prejudicial under any standard, based on the strength of the defense case as described ante, pp. -, and also because one of the jury notes indicated the jury was giving serious consideration to claim of right. (RT 1347.)
The instructional error in this section is reviewable despite the absence of defense objection to the prosecution’s instruction, for all the reasons in Part I(C) above (ante, pp. -). There is no indication on the record of a deliberate tactical decision. Moreover, the error served to lighten the prosecution’s burden of proof on a contested element (see ante, p. ), so it couldn’t possibly have helped appellant, and thus could not have been a deliberate tactical choice.
In addition, since the error lightened the prosecution’s burden of proof on a contested element, the verdict violated the Sixth and Fourteenth Amendments for the reasons described in, e.g., Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281. Appellant did not waive any of his Sixth Amendment rights, since such a waiver would have to be express in the record (Boykin v. Alabama (1969) 395 U.S. 238, 242-243), and there is none here.
Finally, the error was prejudicial on the murder charge as well as the burglary charge, for the reasons ante, pp. -.
For these reasons as well, the judgment should be reversed as to Counts 1 and 2.