Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06 F 168
NICHOLSON, J.
Defendant James Leslie Harris forcibly took cell phones and a checkbook from his girlfriend Valerie Johnson and her nine-year-old daughter during an argument in Johnson’s home. He refused to return the items unless Johnson agreed not to call the police. Johnson eventually agreed. Defendant returned the items and left. Johnson and her daughter hid in her car for safety. When defendant reappeared next to the car, Johnson called the police.
The prosecutor charged defendant with first degree robbery (Pen. Code., § 212.5, subd. (a) (count 1)); residential burglary (§ 459 (count 2)); criminal threats (§ 422 (count 3)); false imprisonment by violence (§§ 236 and 237 (count 4)); battery on a noncohabitating spouse (§ 243, subd. (e)(1) (count 5)), and violating a restraining order (§ 273.6, subd. (a) (count 6)). The jury convicted defendant on all counts except count 2.
Undesignated section references are to the Penal Code.
The court sentenced defendant to a prison term of four years, consisting of a four-year middle term for count 1 with concurrent terms of two years each for counts 3 and 4. The court imposed credit for time served on counts 5 and 6.
Defendant raises four contentions on appeal. Three of the error allegations attack the robbery conviction: (1) Insufficient evidence supports the finding that defendant took property not belonging to him with the intent to deprive the victim of it permanently; (2) the trial court erred by not instructing sua sponte on the claim-of-right defense; and (3) the trial court abused its discretion by admitting a prior misdemeanor conviction into evidence as to the robbery charge. Defendant’s fourth claim of error alleges the trial court erred by not staying imposition of sentence on the convictions for criminal threats (count 3) and false imprisonment (count 4).
We find no error and affirm the judgment in its entirety.
FACTS
A. Background and Prior Misdemeanors
Defendant and Johnson had been a couple for about six years. Defendant acted like a father to Johnson’s three children. Problems developed in their relationship after they moved from Ohio to California in 2003. Although they lived separately at times, defendant contributed to the financial maintenance of the household on a regular basis.
In February of 2005, defendant and Johnson were living separately. On February 8, defendant came to Johnson’s house for dinner with her permission. After dinner, defendant started pacing, going through papers, and making accusations against Johnson. Fearing defendant would become enraged, Johnson told him she should take him home, and defendant agreed. Upon arriving at his residence, defendant refused to leave the car. He tried to grab the keys form the ignition, but Johnson got them first and hid them.
Defendant got out of the car, came around, opened the driver’s door, and began struggling with Johnson for the keys. She may have kicked him. Defendant punched her in the face with a closed fist, leaving a bruise on her chin. When Johnson got home, she called the police.
Defendant was convicted of corporal injury to a cohabitating person (§ 273.5), a misdemeanor, based on this incident and was on probation for it at the time of trial. The court admitted evidence of this conduct as part of the prosecutor’s case-in-chief in relation to count 5. The parties stipulated to the fact of conviction.
On October 20, 2005, at about 4:00 a.m., defendant was at Johnson’s residence. Johnson saw that he was in the beginning stages of what she called “flipping out,” where he would act paranoid, go through papers, and accuse her of being unfaithful. Johnson tried to leave the house, but defendant took her car keys to prevent her from leaving. Johnson left on foot and started walking down the street. Defendant followed after her. He grabbed her purse to get her checkbook. As defendant pulled on the purse, Johnson sprayed him with mace. She called the police, and the officers instructed defendant to go home and get some sleep. Defendant did not try to rest, so Johnson called the police again.
Defendant was convicted of battery on a cohabitant (§ 243, subd. (e)(1)), a misdemeanor, based on this incident and was on probation for it at the time of trial. The court admitted evidence of this incident as part of the prosecutor’s case-in-chief in relation to all charges after it determined the incident followed a pattern very similar to the charged offense.
After this latest incident, a police officer told Johnson that he would call child protective services to have her children removed from the home if she did not obtain a restraining order against defendant. She obtained the order, which directed defendant not to have any contact with Johnson or her children, and to stay at lease 100 yards away from them. The order was still in effect as of January 2006.
However, defendant and Johnson were together often. They were seeing each other on a daily basis from mid-December through the first week of January 2006. Defendant occasionally stayed at Johnson’s house. He continued to contribute financially to the household. Defendant even loaned Johnson money to purchase Christmas presents for the children. Johnson would deposit his money into her checking account, and she would give him money from that account whenever he asked for it.
Defendant asked Johnson to drop the restraining order. She did not because she was concerned he would “flip out” again. She wanted to be sure defendant took his medications and enrolled in anger management and counseling programs.
A few days before January 7, 2006, defendant disappeared with Johnson’s car for a few hours. That was how incidents had begun in the past, with defendant disappearing and staying out of contact for a few hours.
B. Charged Offense
On January 7, 2006, at about 5:00 p.m., defendant went to Johnson’s house and asked Johnson to repay him some of the money he gave her for Christmas presents because he was broke and could not buy food. Johnson told defendant she did not have any money to give him. Defendant became angry and accused Johnson of using him. Fearing a confrontation, Johnson took her nine-year-old daughter, Catherine, to work with her that evening at a hospital where she had a work order to repair a copy machine and was allowed to work late at night.
During the evening, defendant called Johnson about 10 times on her cell phone, but she did not answer. Defendant left voice messages accusing her of using him, taking all his money, and leaving him. He accused her of having a boyfriend, and he threatened suicide. He said he would die before he would go to jail and threatened to jump off a bridge.
Johnson and Catherine arrived home at around 11:30 p.m. Johnson did not know if defendant was still in the house, but Catherine saw defendant asleep on the couch and later told her mother. Johnson took her purse and Catherine to bed with her in case they had to leave the house quickly. She also had three cell phones with her: a work phone on her hip, a personal phone in her purse, and another personal phone she had placed in Catherine’s pocket. The account to the two personal cell phones was in Johnson’s name, and the money defendant put into Johnson’s checking account helped pay for the personal cell phones. Johnson primarily used the phone in her purse, and defendant primarily used the one in Catherine’s pocket. Johnson had taken the phones to bed a few times before for safety reasons when she and defendant had problems.
At about 2:30 a.m., defendant came into Johnson’s room and turned on the light. He was angry and accused Johnson of being at someone’s house that evening because she had not answered her cell phone. He demanded to see Johnson’s cell phones to see what numbers she had called. Johnson gave him her work phone she had kept on her hip but refused to give him her personal phone. Defendant grabbed at Johnson’s purse and, in the ensuing struggle, pulled Johnson off the bed and onto the floor. Defendant got the purse away from Johnson and took out the cell phone and Johnson’s checkbook. He checked the numbers on the phone and asked to see the third phone, which, unbeknown to him, was in Catherine’s pocket. Johnson told him it was out in her car.
Defendant went out to Johnson’s car to search for the third cell phone. He came back into the house and called the third phone. He heard it ring in Catherine’s pocket. He grabbed Catherine by the arms, threw her onto the couch, and tried to get the phone out of her pocket. Johnson then began pulling on defendant, and defendant turned and punched her in the chest. Returning his attention to Catherine, defendant got the phone from her, and he checked it to see what numbers had been called. He somehow had also obtained a set of keys belonging to Johnson. Catherine tried to leave the house and go for help, but when defendant ordered her to go to her room, she complied.
Johnson was screaming. Defendant put his hand over her mouth and repeatedly told her to be quiet. He also said he could not go back to jail and would kill her. He said, “I can’t go back to jail. Please don’t call them. If they take me back, they’ll have to put me in for murder . . . .” Catherine heard him say he would kill Johnson if she put him in jail.
Johnson opened the front door at one point, but defendant closed it and said he wanted to talk. Defendant took her shoes so she could not leave. He said several times that he would give her everything back if she promised not to call the police.
Because she was frightened and wanted defendant to leave, Johnson promised not to call the police. Eventually defendant calmed down. He gave back the three phones and the checkbook, and then he left. As soon as he had left the yard, Johnson took Catherine out and they sat in her company car. That car was equipped with a panic button that sounded the horn and flashed the lights. When defendant appeared at the driver’s side window, Johnson immediately hit the panic button. She also called 911.
Johnson later found her set of keys on the ground near the driver’s side of her car.
DISCUSSION
I
Sufficiency of Evidence of Robbery
Defendant contends insufficient evidence supports his robbery conviction. Specifically, he claims the evidence does not show he took property not belonging to him with the intent to deprive Johnson of it permanently. We disagree.
The elements of robbery are well established. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The requirement of a felonious taking calls for the same intent required of larceny: “the intent, without a good faith claim of right, to permanently deprive the owner of possession.” (People v. Davis (1998) 19 Cal.4th 301, 305; People v. Green (1980) 27 Cal.3d 1, 57.)
Two factors of the required showing of intent are at issue here. The first is taking the property without a good faith claim of right. Taking property with a good faith claim of right negates the felonious intent required to establish robbery. “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.” (People v. Butler (1967) 65 Cal.2d 569, 573.) “[T]he availability of the claim-of-right defense to robbery was envisioned by the Legislature and incorporated into the statutory definition of that offense (§ 211), for robberies in which the defendant sought to recover specific property for which he believed in good faith he had a bona fide claim of ownership or title, that is, a recognition that one cannot feloniously intend to steal one’s own property.” (People v. Tufunga (1999) 21 Cal.4th 935, 953, fn. 5) [defense applies to specific items of property, not to claims for debt collection].) The defense applies even if the defendant takes the property by force. (Id. at p. 949.)
Although a defendant does not lose this defense if his belief in a claim to the property is mistaken, he does lose the defense if his belief is not held in good faith. “‘Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith.’ [Citations.] For example, the circumstances in a particular case might indicate that although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.” (People v. Stewart (1976) 16 Cal.3d 133, 140.)
The second intent factor at issue here concerns the intent to deprive the owner of possession permanently. The word “permanently” as used in this context is not to be taken literally. (People v. Avery (2002) 27 Cal.4th 49, 55, People v. Davis, supra, 19 Cal.4th at p. 307.) “The reference to the intent to permanently deprive is merely a shorthand way of describing the common law requirement and is not intended literally. Thus, to determine the exact nature of California’s intent requirement, we must turn to the common law.” (People v. Avery, supra, 27 Cal.4th at p. 55.)
Our Supreme Court has found in the common law several categories of arguably temporary takings that nonetheless were determined to indicate the defendant intended to permanently deprive the owner of possession. These categories include when the defendant intends to: (1) “sell” the property back to the owner; (2) claim a reward for “finding” the property; (3) return the property for a “refund,” (4) take and use the property temporarily and then abandon it in circumstances where the owner is unlikely to find it; or (5) take the property for a period of time long enough to deprive the owner of a major portion of its value or enjoyment. (People v. Avery, supra, 27 Cal.4th at pp. 55-56; People v. Davis, supra, 19 Cal.4th at p. 307.)
At trial in this matter, the trial court instructed the jury on the intent element using subparagraph (5) above. The court stated: “To prove that the defendant is guilty of [robbery], the People must prove that . . . he intended to remove [the property] from the owner’s possession for so [sic] an extended period of time the owner would be deprived of a major portion of the value or enjoyment of the property.” The Attorney General does not pursue this theory here on appeal, and for good reason. No evidence in the record supports a conclusion that defendant’s taking of Johnson’s property denied Johnson a major portion of those items’ value or enjoyment.
With these principles underlying the two intent factors in mind, we turn to apply them to defendant’s taking of Johnson’s property. Our task is to determine whether substantial evidence supports the jury’s conclusion that defendant took these items without a good faith belief in a claim of right to them and with the intent to deprive Johnson of them permanently.
We note the Attorney General limits his argument to the checkbook and Johnson’s personal phone. He does not concede that defendant had a valid claim of right to the phone in Catherine’s pocket, or that Johnson’s purse and work phone were not part of the robbery. Nonetheless, he directs his argument only to the checkbook and Johnson’s personal phone because, he asserts, the elements of robbery “are clearest” as to those items. We will therefore also limit our discussion to those items.
A. The checkbook
Defendant argues he had a claim of right to the checkbook he took out of Johnson’s purse. He contributed money that Johnson put into the account, and Johnson gave him money from the account whenever he asked. Substantial evidence, however, supports the jury’s finding that defendant did not have a good faith belief in a claim of right to the checkbook.
The checkbook itself was Johnson’s, and defendant’s behavior indicates he was well aware of that fact. The account was solely in Johnson’s name. Defendant was not authorized to write checks on the account, and he never did. If he actually believed he had a claim of right to this checkbook, he would not have felt obligated to ask Johnson for money from the account whenever he needed it. He instead could have simply written himself a check. Defendant’s giving money to Johnson for her to use and put in the account did not entitle him to claim an interest in the actual checkbook. Substantial evidence supports the jury’s finding that defendant did not in good faith believe he had a claim of right to the checkbook.
B. Johnson’s personal cell phone
Defendant claims there is no substantial evidence that he feloniously intended to take Johnson’s phone that he found in her purse. He asserts the evidence shows he intended only to see the phone, not take the phone. He also argues that he had a claim of right to the phone because he contributed funds to the household’s expenses.
Substantial evidence supports the jury’s finding of intent. A temporary taking has been deemed to be permanent when the defendant makes returning the property contingent on the victim performing some act, such as purchasing the property back or paying the defendant a reward. (People v. Davis, supra, 19 Cal.4th at pp. 309, 310-311.) By conditioning the return, the defendant creates a substantial risk of permanent loss, because if the victim does not perform the requested act, the defendant has a strong incentive to keep the property in order to conceal the theft. (Ibid.)
Here, defendant conditioned his returning the property on Johnson agreeing to a promise defendant had no right to extract. If Johnson had not agreed, defendant would have had a strong incentive to leave the house with the phones, thereby permanently depriving her of them, to ensure Johnson did not call the police.
Defendant cites to Johnson’s testimony as proof of lack of intent. Johnson stated defendant went for her phone so he could see what phone calls she had made. However, if viewing telephone numbers was his only purpose, he would not have kept the phone after seeing the numbers. He would have dropped it like he dropped the purse. His maintaining possession of the phone after obtaining it, along with his expressly conditioning its return, constitute substantial evidence that defendant intended to deprive Johnson of the phone permanently.
Even if that is so, defendant asserts he had a good faith belief in a claim of right to Johnson’s phone. He bases this argument on Johnson’s testimony that both she and defendant used both of the personal cell phones. Also, defendant helped pay for the cell phones and for the family’s maintenance.
The test here is whether substantial evidence supports the jury’s conclusion that defendant did not have a good faith belief in a claim of right to Johnson’s personal cell phone. We conclude such evidence exists. The cell phones and the cell phone account were exclusively in Johnson’s name, and this particular phone was recognized by everyone, including defendant, to be Johnson’s phone. That defendant contributed, or gifted, funds to Johnson for her to use to meet the family’s expenditures could not raise in him a reasonable belief that he had an ownership interest in her phone. We will not disturb the robbery conviction on this basis.
II
Duty to Instruct on Claim-of-Right Defense
Defendant claims the trial court erred by not instructing the jury sua sponte on the claim-of-right defense. Although defense counsel did not request to have the jury instructed on the defense, he did inform the court of his intention to argue that his monetary contributions to the family meant he was not guilty. Defendant argues that the trial court, understanding the state of the evidence as discussed above, and knowing counsel’s intention to assert the defense, had a duty to instruct sua sponte on the claim-of-right defense, and its failure to do so constitutes prejudicial error. We disagree.
Regarding the instruction on robbery, the prosecutor argued he had to prove only that the defendant took property from another person’s possession, and Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1600’s requirement of proving the defendant took property “that was not his or her own” was a misstatement of the law. The trial court correctly disagreed with the prosecutor and instructed the jury it had to find defendant took property that was not his own. The court also told the jury “it is not a defense that a portion of the property taken belong to the defendant.” Nonetheless, the prosecutor still misinformed the jury in argument that if defendant “went into that room to get his own cell phone, it’s still a theft.”
“‘[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that [defendant] acted with a subjective belief he or she had a lawful claim on the property.’ . . . [T]he court need not give the requested instruction where the supporting evidence is minimal or insubstantial.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145, italics omitted.) However, where the supporting evidence is substantial, the court must instruct sua sponte on the defense. (People v. Creath (1995) 31 Cal.App.4th 312, 319.)
As we concluded above, there is no substantial evidence to support an inference that defendant took the checkbook and Johnson’s phone with a good faith belief in a lawful claim to those items. Defendant knew the checkbook and Johnson’s phone belonged to Johnson.
Indeed, when looked at as a whole, the evidentiary record indicates defendant took these items because he knew they were not his, and that by taking them, he could control Johnson’s behavior and leverage her not to report him to the police for violating the restraining order. If he genuinely thought the checkbook and Johnson’s phone were his, he would not have attempted to take them on separate occasions only when at risk of Johnson reporting him to the police.
In addition, defendant’s defense against the robbery charge at trial was not based on claim of right. Although he indicated he would claim innocence as a result of contributing money, he actually claimed innocence based on the fact he did not possess the items sufficiently long so as to deprive Johnson of a major portion of their value or enjoyment. That was to be the “crux argument,” and CALCRIM No. 1600 was adequate in his opinion to address that defense.
Insubstantial evidence in the record supported the claim-of-right defense. Thus, the trial court was under no obligation to instruct on the defense sua sponte. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.)
III
Evidence of Prior Conviction
The trial court admitted evidence of defendant’s prior spousal battery conviction from October 2005 under Evidence Code section 1101, subdivision (b), as proof of motive and a common scheme or plan. Defendant contends that evidence of the October 2005 incident as it relates to the robbery charge is relevant only to prove his propensity to be controlling, and therefore was erroneously admitted. We disagree.
We review a trial court’s admission of past crimes for an abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) The trial court’s decision to admit such evidence is entitled to deference. (People v. Harris (1998) 60 Cal.App.4th 727, 736.)
Evidence of prior crimes is admissible to prove a fact other than the defendant’s propensity to commit the present crime. (Evid. Code, § 1101, subd. (b).) Prior crimes may be admitted to prove a defendant’s motive, opportunity, intent, preparation, plan, knowledge, or identity. (Ibid.)
In October 2005, defendant was in the beginning stages of “flipping out.” He was accusing Johnson of being unfaithful. He took her car keys to prevent her from leaving the house. When she left the house anyway, he followed her and tried to take her purse in order to get her checkbook. The prosecutor argued that evidence of the misdemeanor was relevant to prove “the kind of controlling physical behavior that [defendant] has exhibited time and again and is similar in many aspects to this incident . . . .”
The trial court found these facts to be “very similar” to the incident at issue in this case “with respect to his former significant other: controlling, attempting to keep her confined within the home, taking away her means of communication for assistance, her means of escape through transportation, maintaining control of her purse. And that’s highly probative under both propensity and intent . . . .”
When the court instructed the jury, however, it stated the evidence was admitted for the limited purpose of “deciding whether or not the defendant has a motive to commit the offenses alleged in this case or the defendant had a plan or scheme to commit the offenses alleged in this case.”
Defendant claims the evidence was admitted solely for purposes of propensity. He argues the evidence could not be admitted to show a common plan or scheme because his actions in both instances were dissimilar, and they arose impulsively and spontaneously from an undefined mental disorder, not the result of a general plan. We disagree.
No party introduced any expert testimony at trial to show defendant suffered from a mental disorder. Defendant makes the assertion here based on Johnson’s lay testimony that defendant at times was paranoid and delusional.
To be admissible to show a common plan or scheme to the charged crime, evidence of a past crime must share “striking similarities” with the charged crime. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1020.) The past crime must demonstrate “‘a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation].” (People v. Ewoldt (1994) 7 Cal.4th 380, 393-394.) In other words, the notion of a common plan refers to a methodology or peculiar behavior pattern pursued in the performance of repeated criminal acts. (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 92, p. 434; People v. Chambers (1964) 231 Cal.App.2d 23, 30-31.) Similar spontaneous acts by themselves do not constitute a common plan. (People v. Scheer, supra, 68 Cal.App.4th at p. 1021.)
Here, the facts were sufficient for the court to infer a common plan. Johnson was the victim in both instances. Both offenses occurred at Johnson’s home in the early hours of the morning. In both cases, defendant and Johnson had an argument and defendant accused Johnson of being unfaithful. In both cases, defendant tried to prevent Johnson from leaving the house by taking her keys. And, in both cases, defendant tried to take Johnson’s purse by force to get her checkbook.
Moreover, defendant’s action was not spontaneous. He knew he was wrong by going to Johnson’s home and staying there in violation of a restraining order. He initiated the second confrontation in the early hours of the morning, waking Johnson and her daughter after they had already gone to bed. This indicates his actions were not spontaneous or spur-of-the-moment reactions.
A fact finder could reasonably infer that these facts, common to both instances, reveal a general plan or scheme that defendant follows when trying to exert control over Johnson to obtain her checkbook. The trial court did not abuse its discretion in allowing the jury to consider the prior crime in determining if it demonstrated a common plan or scheme.
Defendant also argues the evidence could not be admitted to show motive, but we disagree with this assertion as well. To be admissible as proof of motive, evidence of a prior offense must have a direct relationship to the charged offense. The evidence is admissible because the prior offense explains why the defendant committed the charged offense. (People v. Daniels (1991) 52 Cal.3d 815, 856-857.)
Such evidence exists here. In October 2005, when defendant accused her of being unfaithful, tried to prevent her from leaving the house, and tried to take her purse, Johnson sprayed him with mace and called the police. A fact finder could infer that this poor experience may explain why, in the second instance, defendant became violent toward Johnson, took her checkbook, and maintained control of the cell phones. He wanted to obtain money, and to prevent Johnson from harming him and calling the police again. The trial court did not abuse its discretion in permitting the jury to decide whether the prior incident revealed defendant’s motive in committing the charged offense.
IV
Stay of Sentence for Counts 3 and 4
Defendant contends the trial court violated section 654 by imposing concurrent terms of two years each on counts 3 (criminal threats) and 4 (false imprisonment) instead of staying imposition of sentence on one of them. He argues that all the acts alleged as to these two counts occurred in an indivisible course of conduct with a single objective -- preventing Johnson from contacting the police. We disagree.
When a defendant engages in a continuous course of conduct comprising an indivisible transaction containing a single criminal objective, multiple punishments are precluded. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) “It is [the] defendant’s intent and objective, not the temporal proximity of his offenses, which determines whether the transaction is divisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Multiple punishments are permitted if the defendant has more than one objective. (Ibid.)
A trial court’s finding that a defendant had multiple criminal objectives is reviewed for abuse of discretion and will be upheld if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
In this case, defendant’s threats to kill Johnson were made to prevent Johnson from calling the police. Defendant made these threats after he gained possession of Johnson’s property. In contrast, the acts that constituted false imprisonment -- taking her shoes, closing the door when she tried to leave, putting his hand over her mouth when she tried to scream -- were consistent with a second objective to keep Johnson under his control, force her to face his accusations of infidelity, and “talk” about whatever was plaguing him. The trial court did not abuse its discretion when it imposed concurrent sentences for counts 3 and 4.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., MORRISON, J.