Opinion Bank # O-261 (Re: F 14.00 n15 [Theft: Abandoned Property].)
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NOT TO BE PUBLISHED
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
Plaintiff and Respondent, H018501
(Santa Clara County
V. Super.Ct.No. 188394)
FREDERICK ANTONIO BROWN,
Defendant and Appellant.
After a jury trial, Frederick Antonio Brown was convicted of possessing stolen property. (Pen. Code, § 496.) It was found that Brown had suffered four prior serious felony convictions (Pen. Code, § 1170.12) and that he had served one prior prison term. (Pen. Code, § 667.5, subd. (b).) Appellant was sentenced to 26 years to life in state prison. We will reverse.
Facts and Procedural Background
Liwen Shuen, the owner of National Foods Grocery, which is located in a strip mall on El Camino Real in Santa Clara, testified that she owned a red Toyota pickup. In the past, her employees had driven the truck but after the key was lost, it sat in the parking lot for several months or as long as a year. It was parked facing El Camino, next to a location where individuals parked cars they were selling.
By September 1995, the truck was very dirty, was covered with bird feces, and had many dents in it. At some point while it was parked, the back bumper and a rack, with lights on it had disappeared.
On September 7, 1995, at about 6 or 7 p.m., Shuen noticed that the truck was missing. She had last seen it earlier that day at about 1 or 2 pm. Shuen reported the car missing to the police.
At about 5 p.m. that same day, Ken Kubo, a tow truck driver for Rubello’s towing,was dispatched with a flatbed truck to the parking lot of a barbecue restaurant on El Camino and Flora Vista. At that location, a man, later identified as appellant, appeared.
They drove across the street where a Toyota pickup was parked. The pickup was covered with bird droppings and grime and its registration had expired. Kubo testified that it looked as if the truck had been abandoned or left sitting for an extended period of time. Kubo tried to open the doors, but they were locked. Kubo squirted a soapy solution onto the bed, and with a hydraulic cable attached by a hook to the truck, he slid the truck onto the flatbed. When the truck was on the flatbed, Kubo and appellant drove to the comer of Quito Road and Saratoga Avenue. On the way, appellant asked Kubo how Rubello’s towing obtained title to vehicles that it had acquired. Once they arrived at the comer, appellant went inside a liquor store, while Kubo remained in the cab filling out the receipt. When appellant returned, he gave Kubo $50 in cash, the price which had been prearranged with the tow truck office. They then drove to a house on Paseo Pablo, where Kubo unloaded the truck onto the driveway and issued the receipt.
Rick McDonough, a resident of Saratoga, tesfified that appellant had told McDonough that he had found a red Toyota pickup. Appellant had previously done some landscaping around McDonough’s home and McDonough had agreed that appellant could park the pickup in his driveway and work on it there. According to McDonough, appellant had the truck towed to McDonough’s driveway in 1995, where it remained for several days. McDonough’s roommate, who had mechanical expertise, assisted appellant in repairing the pickup. McDonough also bought some necessary parts that he gave appellant. Once the truck was running, appellant and McDonough’s roommate had the truck moved to another location.
Lester Debar, another resident of Saratoga, testified that appellant parked the Toyota in his front yard, fully open to public view, for three months in 1995. Appellant continued to work on the truck but it was still running badly. Debar saw appellant use a key to start the pickup but he never actually saw appellant drive it.
On December 14, 1995, at about 3 p.m., Officer Ward St. John noticed a black male later identified as appellant, walk up to a truck parked at 12451 Quito Road, remove things from the cab, open the hood, look into the truck bed, and then walk away down Quito Road. St. John determined that the truck was the Toyota that Shuen had reported missing. On December 15,1995, appellant was arrested where the truck was parked.
Officer Larry Whitman testified for the defense that on September 7, 1995, he took a theft report from Shuen. She told him that the truck had been parked in the lot over a year, and that the last time it had been driven was on June 7, 1994. It had last been registered in March 1995 and the registration had expired in September 1995. Shuen had also said that while it had been parked, many parts had been removed from it.
Appellant was charged with vehicle theft (Veh. Code, § 10851) and with possessing stolen property (Pen. Code, § 496). Attached to count one was an allegation that appellant had previously been convicted of vehicle theft within the meaning of Penal Code section 666.5. As to both counts it was alleged that appellant had suffered four prior serious felony convictions (Pen. Code, § 1170.12) and that he had served one prior prison term (Pen. Code, § 667.5).
The jury found appellant not guilty of vehicle theft but guilty of possessing stolen property. The trial court found that the prior allegations were true. Appellant was sentenced to a total of 26 years to life in state prison.
This appeal ensued.
Appellant argues that the trial court erred in refusing appellant’s requested instructions regarding mistake of fact. He also argues that the trial court gave a misleading and incorrect answer to one of the questions posed by the jury. As we explain, we agree that the trial court prejudicially erred in refusing appellant’s requested instructions.
Appellant’s defense included the claim that he had a right to take the pickup truck because he believed it had been abandoned. Defense counsel requested two instructions that she contended capsulated the defense. First, she requested that the jury be instructed in accordance with CALJIC 4.35 as follows: “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if he commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”
Counsel also requested that the jury be instructed based on the holding in People v. Navarro (1979) 99 Cal.App.3d Supp. 1, that: “The defendant’s honest belief, even if mistakenly held, that he had a right or claim to the property taken negates the felonious intent necessary to convict him of theft. [¶] The defendant need not show the claim of right was reasonable. An unreasonable belief that he had a legal right to take the property will suffice so long as the claim was made in good faith. [¶] If the evidence raises a reasonable doubt as to whether defendant acted under a bona fide belief in a right or claim to the property you must find that defendant did not form the necessary felonious intent.”
The trial court refused both instructions, stating that there was no evidence that appellant believed the truck was abandoned.
Subsequently, during deliberations, the jury sent out the following query: “With regard to Penal Code section 496 [subd.] (a): what is the definition of `stolen property’? [We wish to determine whether the defendant, knowing that he possessed a vehicle that was not his, but believing that it had been abandoned, knew that he possessed stolen property.]”
Arguing that the correct answer to the jury’s question was “if somebody possesses something they believe is abandoned and they have taken it, they are not guilty of theft,” defense counsel asked the court to reconsider giving the two previously requested instructions.
Over defense counsel’s objection, the trial court stated it would instruct the jury on the law relating to lost property as set forth in Penal Code section 485, and would inform the jury that there was no special definition of stolen property. [Footnote 1] The court then instructed the jury as follows: “First, there is no special definition under the law of stolen property. It simply means property that was stolen. I will read this instruction: `One who finds lost property under circumstances which give him knowledge of, or means of inquiry, as to the true owner, and who appropriates such property to his own use without first making reasonable and just efforts to find the owner and to restore the property to the owner is guilty of theft.'” It also reinstructed the jury under CALJIC 17.31.
“`It is an established principle of the law of theft that a bona fide belief of a right or claim to the property taken, even if mistaken, negates the element of felonious intent.'” (People v. Romo (1990) 220 Cal.App.3d 514, 517; quoting People v. Alvarado (1982) 133 Cal.App.3d 1003, 1017.) It is also true that a defendant need not show his mistaken claim of right was reasonable. “An unreasonable belief that he had a legal right to take another’s property will suffice so long as he can establish his claim was made in good faith.” (People v. Romo, supra, 220 Cal.App.3d at p. 518.)
The parameters of this defense depend upon the circumstances in which it is being applied. For example, the claim of right defense has been rejected for public policy reasons in several jurisdictions when force, violence, or weapons are used for self-help debt collection. (People v. Barnett (1998) 17 Cal.4th 1044, 1143, citing cases.) In Barnett, supra, the California Supreme Court concluded a claim of right defense was not available as an aspect of self-help debt collection where the claimed debt is uncertain and subject to dispute. (People v. Barnett, supra, 17 Cal.4th at p. 1146.)
Situations in which the claim of right defense has been applied include a claim of right based upon the belief that the property has been abandoned. For example, People v. Navarro, supra, 99 Cal.App.3d Supp. 1 addressed the question of instructing on the defense in response to a charge of grand theft. In Navarro, defendant was charged with stealing four wooden beams from a construction site. There was evidence from which the jury could have determined that defendant believed the beams had been abandoned and that the owner had no objection to him taking them. Based upon this evidence, the defendant argued he lacked the specific criminal intent necessary to commit the crime of theft. The trial court instructed the jury that even though the defendant in good faith believed he had the right to take the beams, and thus lacked the necessary specific intent, he should still be convicted unless his belief was reasonable. (Id. at p. 3.)
The appellate department of the superior court reversed (People v. Navarro, supra, 99 Cal.App.Supp. at p. 11.) In so doing, the court explained that there was the “`rather simple rule that an honest mistake of fact or law is a defense when it negates a required mental element of the crime….'” (Id. at p. 10.) Quoting from La Fave and Scott, which used the crime of receiving stolen property as an example, the opinion reasoned ” “`if the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime.'” (People v. Navarro, supra, 99 Cal.App.Supp. at p. 10.)
Applying these rules to the facts before it, Navarro concluded that “the trial court in effect instructed the jury that even though defendant in good faith believed he had the right to take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred. [Fn. omitted.] It is true that if the jury thought the defendant’s belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established.” (Id. at pp. 10- 11, emphasis added.)
As Navarro demonstrates, the claim of right defense may apply in circumstances where the defendant took the property because he or she believed it was abandoned. With this in mind, we next consider whether there was evidence to support giving the instruction in the circumstances here.
In so doing, we are cognizant of the following principles. First, in determining whether to instruct on the defense, the trial court must decide if there is evidence to support an inference that the defendant acted with a subjective belief that he or she had a lawful claim to the property. (People v. Barnett, supra, 17 Cal.4th at p. 1145; citing People v. Romo, supra, 220 Cal.App.3d at p. 519.) “[A] trial court must give a requested instruction, “when there is sufficient evidence to support it, that is when there is evidence from which reasonable jurors could conclude the facts underlying the instruction exist.” (People v. Romo, supra, 220 Cal.App.3d at p. 517.)
In addition, in assessing the evidence to determine whether to give a requested instruction, the trial court should not measure the substantiality of the evidence by weighing the credibility of the witnesses. That duty is within the exclusive province of the jury. However, if the evidence is minimal and insubstantial, then the court need not instruct on its effect. (People v.Barnett, supra, 17 Cal.4th at p. 1145; People v. Flannel (1979) 25 Cal.3d 668, 684; People v. Duckett (1984) 162 Cal.App.3d 1115, 1125.)
Finally, we are mindful that any doubt as to the’ sufficiency of the evidence to support giving an instruction should be resolved in favor of the accused. (People v.Barnett, supra, 17 Cal.4th at p. 1145; People v. Wilson (1967) 66 Cal.2d 749, 763; People v.Flannel, supra, 25 Cal.3d at p. 684, fn. 12; People v. Romo,supra 220 Cal.App.3d at p.518)
Here, the People concede that “for appellant’s instructions to have been required, there must have been evidence from which the jury could reasonably have found that appellant honestly but mistakenly believed the pickup had been abandoned.” The People also concede that “A person aware of the fact that the pickup had sat in the lot for a year and was being vandalized might have concluded that the pickup had been abandoned.” However, according to the People, the record contained no evidence that appellant believed the truck had been abandoned. They stress that appellant did not testify. They also emphasize that there was no other evidence presented regarding appellant’s beliefs.
We disagree with the People’s position. Indeed, as the People also concede, appellant’s testimony was not essential if other evidence existed from which his state of mind could reasonably be inferred. (People v. DeLeon (1992) 10 Cal.App.4th 815, 824.) “`It seldom happens that direct evidence can be produced that the accused had actual knowledge of a fact. And in the absence of direct evidence knowledge may be inferred from circumstances.'” (People v. Navarro, supra, 99 Cal.App.Supp. at p. 9, quoting State v. Aschenbrenner (1943) 171 Ore. 664, emphasis added.)
Here, there was evidence to support the requested instructions. First, the truck had all the earmarks of being abandoned. It was filthy, covered with bird droppings, and full of dents. Various parts had been removed from the truck, including the back bumper, and a rack with lights on it. Rick McDonough testified that the truck was in “deplorable” condition and that it looked like a piece of junk. Ken Kubo, the tow truck driver, testified that the truck appeared to him to have been abandoned.
Second, appellant’s own conduct could lead a reasonable jury to conclude that appellant believed the truck had been abandoned, and that be was not doing anything wrong. Appellant told Rick McDonough that he had found an old truck and asked him if he could work on it at McDonough’s house. Subsequently, using a commercial tow truck company, in broad daylight, appellant had the truck towed to McDonough’s house. On the way, appellant asked Kubo, the tow truck driver, about acquiring legal title to vehicles. Then, appellant did not sell the car, remove the license plate, or otherwise try to disguise it. Instead, be invested time and money into the truck in an effort to clean it, fix it up, and get it running. He always kept the truck in locations where it could be easily seen by the public, such as in Lestar Dunbar’s front yard in Saratoga, where Officer St. John eventually noticed, according to his testimony, “a black male,” remove things from the truck cab, open the hood, and look into the truck bed. In sum, appellant acted as if he thought be was entitled to possession of the truck, rather than acting in the furtive manner of someone who knew be had no right to the property. (People v. Devine (1892) 95 Cal. 227, 228-229 [defendant’s lack of concealment indicative of his belief of entitlement to the property].)
Third, the fact that this evidence was not minimal or insubstantial, and sufficient to lead a reasonable jury to conclude that appellant thought the truck abandoned, is demonstrated by the note the jury sent. In it, the jury stated that “We wish to determine whether the defendant, knowing that he possessed a vehicle that was not his but believing that it had been abandoned, knew that he possessed stolen property.” As the trial court realized, and the prosecutor conceded, the clear import of the note was that some or all members of the jury thought the evidence that appellant believed the truck was abandoned was worthy of their consideration.
Nonetheless, and despite the fact that any doubt as to the sufficiency of the evidence to support giving an instruction should be resolved in favor of the accused (People v. Wilson (1967) 66 Cal.2d 749, 763; People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12; People v. Romo, supra, 220 Cal.App.3d at p. 518), and also despite the fact that in determining whether evidence warrants instruction the court must view the evidence in the light most favorable to the defense People v. Barnett (1998) 17 Cal.4th 1044, 1151), the trial court still refused the defense instruction request.
In so refusing, the trial court erred and the error requires reversal. Under either a Chapman v. California (1967) 386 U.S. 18, 24, or People v. Watson (1956) 46 Cal.2d 818, 836-837 standard of review, reversal is warranted. As already discussed, there was evidence to support appellant’s defense of a claim of right based upon abandonment The possibility that the failure to instruct affected the verdict is revealed by the note the jury sent, which discloses that some or all members of the jury thought the defense was worthy of consideration.
The error was compounded by the fact that the trial court, in direct response to the jury’s note, instructed the jury in accordance with Penal Code section 485, regarding lost property. There was no evidence that the truck in this case was lost. While the finder of lost property has an obligation to attempt to ascertain who the owner is (Civ. Code, § 2080) [Footnote 2], and is charged with theft if he or she does not (Pen. Code, § 485) [Footnote 3] that obligation is not imposed on the finder of abandoned property. (Civ. Code, § 2080.7.) [Footnote 4] The jury was given the lost property instruction in direct response to its inquiry regarding abandoned property. Since the instructions requested by the defense were not given, the jury could not help but conclude that it was to apply the principles set forth in the lost property instruction to appellant’s case, and find that the truck was stolen because appellant did not show he made a reasonable effort to ascertain the owner.
We need not decide whether or not the lost property instruction should have been given. We do note that in People v. Stay (1971) 19 Cal.App.3d 166, the court reasoned that the term “lost,” as used in Penal Code section 485 and Civil Code section 2080, is used in its ordinary sense, and that the Legislature did not intend that any special meaning be given to the term. (People v. Stay, supra, 19 Cal.App.3d 166, 171.) Using the reasoning of Stay, and applying an ordinary meaning to the term, we feel comfortable in concluding that most individuals do not regard vehicles that looked like this truck as vehicles that have been “lost.” They generally think of them as having been abandoned.
In any event, even if it was proper for the trial court to give the lost property instruction, it also should have given the instructions requested by the defense. Then, the jury could have been left to decide whether appellant should have viewed the truck as “lost” or whether he had an honest, albeit mistaken belief, that the truck had been abandoned. And although it may not have been reasonable for appellant to decide he could take the truck because he thought it had been abandoned, the law does not require that the belief be reasonable. (People v. Navarro, supra 99 Cal.App.Supp. at p 9.) It must only be made in good faith. As Navarro reasoned, a jury might conclude that a defendant’s belief is unreasonable, and from that infer that the defendant did not in good faith hold such a belief. But that is up to the jury to decide, based upon the instructions given them.
Here, the jury never had that opportunity. They were denied that chance despite the fact that there was evidence that the truck looked abandoned, that the tow truck driver thought the truck had been abandoned, and despite the fact that appellant’s conduct, both in having the truck towed in broad daylight by a commercial towing company and in keeping it in public view and not changing the license plates, could reasonably support the inference that he too thought it had been abandoned. The jury’s note highlights the fact that some or all of them were willing to consider appellant’s abandonment defense. However, the trial court’s refusal to instruct denied them the chance to apply the law essential to that defense.
“[N]o category of instructional error [is] more prejudicial than when the trial judge makes a mistake in responding to a jury’s inquiry during deliberations.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 252-253.) The jury’s question went to the heart of the case. Identity was not disputed and the only issue was whether appellant thought he had a right to take the truck because it was abandoned. Indeed, in their brief, the People do not even attempt to argue that the error was harmless. We find that it was prejudicial under any standard. Accordingly, we conclude that appellant’s conviction for receiving stolen property must be reversed.
The judgment of conviction is reversed. [Footnote 5]
People v. Brown
Footnote 1: The instruction based upon Penal Code section 485 had originally been requested by the prosecution but had then been withdrawn.
Footnote 2: Civil Code section 2080 provides: “Any person who finds a thing lost is not bound to take charge of it, unless the person is otherwise required to do so by contract or law, but when the person does take charge of it he or she is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property, or saves any domestic animal from harm, neglect, drowning, or starvation, shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. Any person who takes possession of a live domestic animal shall provide for humane treatment of the animal.”
Footnote 3: Penal Code section 485 provides: “One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.”
Footnote 4: Civil Code section 2080.7 provides: “The provisions of this article have no application to things which have been intentionally abandoned by their owner.”
Footnote 5: Appellant raises several other assignments of error. Since we find that his first argument requires reversal, we need not address these other contentions.