P. v. Shaw

 

 

 

 

 

 

 

 

Filed 6/17/13  P. v. Shaw CA4/3

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE DISTRICT

 

DIVISION THREE

 

 
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THE PEOPLE,         Plaintiff and Respondent,               v.   ELMORE DEAN SHAW,         Defendant and Appellant.

G046900            (Super. Ct. No. 11NF0274)            O P I N I O N

 

                        Appeal from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Sheila

F. Hanson, Judge.  Affirmed.

                        Elizabeth Garfinkle, under appointment by the
Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, William M. Wood and Ifeolu E. Hassan, Deputy Attorneys
General, for Plaintiff and Respondent. 

 

                        Appellant
was convicted of robbing Randall Yerton after Yerton refused to go through with
a drug deal appellant had proposed to him. 
Appellant contends the trial court prejudicially erred in failing to
instruct on the lesser included offense of grand
theft person and on the claim-of-right defense.  We disagree and affirm the judgment.       

FACTS

                        During
the summer of 2010, Yerton occasionally purchased small amounts of marijuana
from appellant.  Most of the transactions
took place near the motel where Yerton lived in Anaheim.  Yerton would pay appellant at the time
appellant tendered the marijuana, and they never had any problems doing
business that way.

                        However, one day in
October 2010, appellant asked Yerton to give him $40 up front for some
marijuana.  Against his better judgment,
Yerton gave appellant the money expecting appellant would then go get the
marijuana and give it to him.  But
appellant didn’t deliver the goods that day, nor did he return any of Yerton’s
phone calls over the next few weeks. 
Yerton felt burned and regretted his decision to give appellant his
money up front. 

                        On
November 29, 2010, appellant called Yerton and told him he could get him half a
pound of marijuana in Compton for $200. 
Yerton said he was interested, but he told appellant he wanted to finish
up their old business first:  He wanted
appellant to give him the $40 worth of marijuana he had already paid for before
they did any more deals together. 

                        Appellant
said he understood.  He told Yerton to
meet him at the 99¢ Store near his motel, and he would give him the marijuana
he owed him.  Then, if Yerton had the
$200, they could go get the additional half pound in Compton.  Yerton said he had the money, but when he
left his motel room he only had a few dollars on him.  He had no intention of giving appellant any
more money or going to Compton with him. 
The only reason he said he had the $200 was so appellant would meet with
him and give him the marijuana he already owed him. 

                        Yerton’s plan did not
work out as he expected it to.  Upon
walking over to the 99¢ Store, he saw appellant sitting in his car near the
front of the store.  Appellant motioned
for him to get in the car, but Yerton merely crouched inside the passenger door
without getting all the way inside the vehicle. 
He told appellant he wanted the marijuana he was owed, and appellant
gave him a container of marijuana that looked like it was from a medical
marijuana clinic.  Yerton inspected the
container and noticed it appeared to have less marijuana than what he was
owed.  When he said the container looked
“short,” appellant assured him he would make it up to him on another deal.

                        Yerton wasn’t happy, but
he told appellant he would settle for the container and call it even.  He also told appellant he wasn’t interested
in doing the Compton deal, which made appellant very upset.  Appellant said the Compton deal was “vital”
and vehemently implored Yerton for money. 
While appellant was doing so, Yerton noticed a bulge under his shirt.  Suspecting the bulge was a gun, Yerton told
appellant he did not have any money and began backing away from the car. 

                        It is unclear where the
container of marijuana was at that time. 
Yerton testified he may have tossed it on the passenger seat or it may
have fallen onto the ground, but either way he did not have it.

                        Fearful of appellant,
Yerton entered the 99¢ Store for protection. 
When appellant followed him into the store, he told him to leave him
alone and pointed out they were being videotaped by the store’s surveillance
camera.href="#_ftn1" name="_ftnref1" title="">[1]  Yerton also told the people in the store
appellant had a gun and to call 911, but no one did so.  During the incident, appellant yelled out,
“He’s got my marijuana” and demanded money from Yerton.  However, he eventually left the store.     

                        Keeping an eye out for
appellant, Yerton left the store soon thereafter.  First, he walked over to a nearby food store,
and then about 30 minutes later, he decided to head home.  As he was about to enter the front gate of his
motel, appellant jumped out from behind the bushes and attacked him.  He floored Yerton with a punch to the head,
and when Yerton hit the sidewalk, his cell phone slid forward on the ground
ahead of him.  Appellant picked up the
phone and punched Yerton in the head again for good measure.  Then he began rifling Yerton’s pockets.href="#_ftn2" name="_ftnref2" title="">[2]  

                        Hearing the ruckus, a
motel worker ran to the scene.  At that
point, appellant fled, and the worker took Yerton inside and called 911.  Yerton was feeling groggy, “like he had a concussion,”
when he spoke to the dispatcher. 
However, he downplayed the incident and said he did not need any medical
care.  The only thing he reported stolen
was his cell phone.  When the police
arrived, he told them about appellant attacking him, but he did not say
anything about their marijuana dealings. 


                        Later
that night, Yerton realized the money he had on him before the attack, “a
couple dollars,” was missing.  Although
he did not see appellant take the money, he suspected he did so while he was
going through his pockets.  When the
police conducted a follow-up interview with appellant a week after the attack,
he told them about the pocket money.  But
again, he did not say anything about marijuana. 
It wasn’t until the police interviewed Yerton for a third time that he
“came clean” and told them about his prior dealings with appellant.   

                        Appellant was charged
with one count of robbery.  The charge
was premised on the theory appellant unlawfully took Yerton’s cell phone after
knocking him down.  Although there was
also evidence appellant rummaged through Yerton’s pocket and took a few dollars
from him, the prosecution elected to use the cell phone as the basis for the
robbery charge.  Accordingly, the jury
was instructed, “The property the defendant is accused of taking is the item of
property shown falling on the sidewalk in the video.  You may not convict the defendant unless you
all agree the defendant took that item.” 
The jury was also instructed on the lesser included offenses of attempted
robbery and petty theft.        

                        In closing argument, the
defense argued that when Yerton met appellant in his car on the night in
question, Yerton not only inspected the container of marijuana appellant gave
him, he also kept it when he left the vehicle. 
According to defense counsel, appellant simply wanted to get the marijuana
back when he followed Yerton into the 99¢ Store and attacked him outside his
motel.  While admitting appellant
assaulted Yerton that night, the defense claimed the object appellant picked up
after the assault was his own cell
phone, not Yerton’s.  Therefore, he was
not guilty of robbery.  However, the jury
convicted appellant as charged, and the court sentenced him to two years in
prison.  This appeal followed.

I

                        Appellant contends the
trial court prejudicially erred in failing to instruct the jury sua sponte on
the lesser included offense of grand theft person.  (Pen. Code, § 487, subd. (c).)  Assuming such an instruction was warranted,
we find its omission was harmless under the circumstances of this case. 

                        “‘“The trial court has a href="http://www.mcmillanlaw.com/">sua sponte duty
to instruct on lesser included
offenses when the evidence raises a question as to whether all of the elements
of the charged offense were present and there is evidence that would justify a
conviction of such a lesser offense.”’  [Citation.] 
As [our Supreme Court has] explained, instructing on lesser
included offenses shown by the evidence avoids forcing
the jury into an ‘unwarranted all-or-nothing
choice’ [citations] that could lead to an unwarranted conviction.”  (People
v. Hughes (2002) 27 Cal.4th 287, 365.) 


                        Appellant argues there
is substantial evidence that when he attacked Yerton, he did not intend to
steal his cell phone, which was the alleged object of the robbery.  Rather, he was merely trying to get his
marijuana back or get money from Yerton, and he only took Yerton’s cell phone
as an afterthought.  And if that was the
case, then he was only guilty of grand theft person.  (See In
re Jesus O. (2007) 40 Cal.4th 859 [upholding conviction for grand theft
person where defendant attacked victim to get his money but ended up only
taking his cell phone].) 

                        Assuming there was
sufficient evidence to support an instruction on grand theft person, any error
in failing to instruct on that offense was harmless because the factual
question posed by that instruction was resolved against appellant under other
properly given instructions.  (>People v. Elliot (2005) 37 Cal.4th 453,
475.)  As noted above, the jury was not
presented with an all-or-nothing choice between the charged offense of robbery
and acquittal.  Rather, the trial judge
instructed on the lesser included offenses of attempted robbery and petty
theft.  The petty theft instruction
allowed the jury to convict appellant of that lesser offense if it believed he
formed the intent to steal Yerton’s cell phone after he attacked him. 
However, by convicting appellant of robbery, the jury obviously did not
believe that was the case.  So, the
failure to instruct on grand theft person could not have prejudiced appellant.

                        Despite the petty theft
instruction, appellant contends it is not likely the jury would have convicted
him of that minor offense, given the amount of force he used against
Yerton.  In other words, he contends
petty theft was not a viable alternative for the jury because it did not
comport with his overall level of culpability. 
But if you factor in the assault, neither did grand theft person. 

                        The bottom line is
this:  “Under the instructions given, the
jury was not put to an improper all-or-nothing choice, but necessarily rejected
the theory of after-acquired intent when it found [appellant] guilty of robbery
rather than petty theft.”  (>People v. Dominguez (1992) 11
Cal.App.4th 1342, 1353.)  Therefore,
“[a]ny error in failing to instruct on grand theft was harmless.  [Citation.]” 
(Ibid.)

name="sp_999_4">II

                        Appellant also contends
the trial court prejudicially erred in failing to instruct the jury sua sponte
on the claim-of-right defense.  Again, we
disagree.

                        “‘It has long been the rule in
this state and generally throughout the country that a bona fide belief, even
though mistakenly held, that one has a right or claim to the property negates
felonious intent.  [Citations.]  A belief that the property taken belongs to
the taker [citations], or that he had a right to retake goods sold [citation]
is sufficient to preclude felonious intent. 
Felonious intent exists only if the actor intends to take the property
of another without believing in good faith that he has a right or claim to
it.  [Citation.]’  [Citation.]” 
(People v. Barnett (1998) 17
Cal.4th 1044, 1143.)

                        Appellant
argues the trial court should have instructed the jury on this defense because
the record indicates that, when he assaulted Yerton, he was “trying to get his
own marijuana back.”  The argument has
several flaws.

                        First, the
claim-of-right defense does not apply where the claim is based on an illegal
transaction, such as drug dealing.  (>People v. Tufunga (1999) 21 Cal.4th 935,
938-939; People v. Johnson (1991) 233
Cal.App.3d 425, 456-458.)  Appellant
claims the marijuana he was allegedly trying to get back from Yerton was
medical marijuana that he had a legal right to possess.  However, even if that was the case, the
record shows appellant tendered the marijuana to Yerton to satisfy an obligation
arising from a prior illegal transaction, making the claim-of-right defense
inapt as a matter of law.   

                        Second, appellant was
not accused of taking marijuana from Yerton. 
Instead, he was accused of taking the object that fell on the sidewalk
when Yerton hit the ground.  The
prosecutor argued the object was Yerton’s cell phone, and the defense argued it
was appellant’s own cell phone.  No one
argued, and there was no evidence, the object was marijuana.  Therefore, appellant’s claim fails on factual
grounds as well.  (See >People v. Barton (1995) 12 Cal.4th 186,
195 [trial court’s duty to instruct on a particular defense only applies name="SR;7524">“‘if it appears that the defendant is
relying on such a defense, or if there is name="SR;7544">substantial evidence supportive of
such a defense”].) 


                        Finally, although the
court did not specifically instruct on the claim-of-right defense, that defense
was effectively encompassed in the court’s other instructions.  To wit, the court told the jury that in order
to convict appellant of robbery, the prosecution had prove beyond a reasonable
doubt that appellant “took property that was not his own.”  Thus, if, as defense counsel argued,
appellant simply took his own cell phone after assaulting Yerton, he would not
be guilty of robbery.  By convicting
appellant of that offense, the jury necessarily rejected this theory.  Therefore, any error in failing to instruct
on the claim-of-right defense was surely harmless.  (People
v. Demetrulias (2006) 39 Cal.4th 1, 22-24 [failure to instruct on claim-of-right
defense deemed harmless where legal principal of lack of felonious intent was
covered by other jury instructions].)

DISPOSITION

                        The judgment is
affirmed.

 

 

                                                                                    BEDSWORTH,
ACTING P. J.

 

WE CONCUR:

 

 

 

FYBEL, J.

 

 

 

IKOLA, J.