Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050419416
Haerle, J.
I. INTRODUCTION
Justin Thomas Jackson Angus appeals after jury trial from his conviction of first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) He contends that the trial court’s response to an inquiry from the jury during deliberations was improper and prejudiced his defense. Finding no error, we will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
By information filed on December 29, 2004, and amended on February 23, 2005, appellant was charged in count one with first degree residential burglary and in count two with second degree commercial burglary. (§§ 459, 460, subds. (a), (b).) Appellant pleaded not guilty on January 4, 2005.
Jury trial commenced on February 22, 2005.
Prosecution Case
On November 21, 2004, at around 8:30 p.m., Damian Bartl-Lewin and his girlfriend, Dayna Caldwell, were returning to Mr. Bartl-Lewin’s apartment located at 700 “H” Street, apartment number six, in Antioch. As they walked up the steps to the apartment, which was on the second floor, they noticed that lights were on in the apartment and a window to the closet was open. Mr. Bartl-Lewin always kept that window closed and had not left any lights on when leaving earlier.
At the top of the steps, they saw that the front door was open. Mr. Bartl-Lewin cautiously entered the apartment and heard movement in the living room. Upon stepping into the room, he saw appellant putting Mr. Bartl-Lewin’s DVDs and video games into a laundry bag that was normally kept in the bedroom.
Mr. Bartl-Lewin knew appellant as a casual acquaintance whom he had seen at parties over the years. Bartl-Lewin was aware that appellant knew someone in apartment number three on the first floor. Appellant had come up to Mr. Bartl-Lewin’s apartment a couple of times to ask for a cigarette, but had not come inside. Ms. Caldwell only knew appellant from one of the times he had come up to Bartl-Lewin’s apartment.
Upon seeing Mr. Bartl-Lewin, appellant appeared surprised and said, “What’s up, dude?” Mr. Bartl-Lewin responded, “ ‘What’s up dude?’ You’re robbing my house. What’s going on?” As appellant moved toward the front door, Mr. Bartl-Lewin grabbed him and the two began to struggle. Ms. Caldwell closed the apartment door and ran downstairs, screaming for help. She began to pound on other apartment doors.
Appellant was able to open the front door and the two continued to grapple out into the hallway. Appellant managed to break free and he ran downstairs and into apartment number three. He lost a shoe at the top of the stairs. During the struggle, appellant dropped the laundry bag inside Mr. Bartl-Lewin’s apartment. Mr. Bartl-Lewin called the police and then ran downstairs and pounded on the door to apartment number three saying, “I know who you are. The cops are coming.”
In the meantime, Ms. Caldwell pounded on the door to apartment number one, where Matt Stephenson and his father lived. Caldwell yelled that someone was in Bartl-Lewin’s apartment and he needed help. Stephenson called the police and then ran out into the hallway. He saw Bartl-Lewin wrestling with appellant, whom he had seen going in and out of apartment number three on other occasions. He then saw appellant jump down the stairs, run past him and into apartment number three. Stephenson then went down the back steps to the rear of the building, where he saw appellant and another male climb out of a window in apartment number three and run past him, off the premises.
Antioch Police Officer Robert Green was on patrol when he received a dispatch call around 8:47 p.m. of a burglary in process; two males had been seen fleeing from the apartment in the area of “H” Street. After speaking with Stephenson at the apartment building, Officer Green drove around the block to the streets behind the building, but saw no one. He took statements from Bartl-Lewin and Caldwell, and then entered apartment number three through an open window because no key to the locked front door was available.
No one was in the apartment, but the television was on. Items in the apartment were covered in dust, mold was growing on dishes in the sink, and a foul stench was coming from the refrigerator. The officer found property belonging to Mr. Bartl-Lewin, including a black bass guitar and a backpack containing a Play Station, video games, a digital camera, and a black BB gun. After returning the property to Mr. Bartl-Lewin, Officer Green closed and locked all the windows, turned off the television, and closed and locked the front door.
Early the next morning, sometime after midnight, Matt Stephenson was at his computer when he heard glass breaking and then movement inside apartment number three next door. He called the police, and Officer Green responded to the call at around 12:50 a.m. Upon seeing that a rear window to the apartment was broken, he called for additional units to help secure the perimeter.
After other officers arrived, Officer Green knocked on the front door of the apartment, announced that it was the police, and asked whoever was inside to come out. He yelled the same advisement into the broken window. He also advised that a canine unit would be sent in. There was no response. Ultimately, officers kicked in the door and found appellant stepping out from the hallway between the bedroom and the bathroom. No one else was in the apartment.
Appellant was taken into custody. Officer Green described him as cooperative, and did not see any signs of intoxication. Specifically, he saw no red or watery eyes; he smelled no alcohol on appellant’s breath; and he observed no unsteadiness in his gait. Appellant was not subjected to a field sobriety test.
Defense Case
Appellant’s girlfriend of two years, Katie O’Neill, testified that she and appellant would often spend time at her friend Brandy’s apartment at 700 “H” Street in Antioch, apartment number three. Brandy lived there with her five year-old daughter. Brandy let Ms. O’Neill and appellant stay there even if she was not present. Ms. O’Neill and appellant used the apartment to spend time alone because they both lived at home.
On the evening of November 21, 2004, Ms. O’Neill, her brother Mike O’Neill, and appellant were drinking beer at their friend Brian’s house. The four of them drank a 12-pack, with Ms. O’Neill drinking four of them. She did not know how much beer appellant drank. They left when Brian said his house was not a place to party. They called Brandy’s apartment and were invited to come over. Brian drove, and on the way, they stopped at a liquor store in Antioch. Ms. O’Neill paid for a fifth of whiskey. Appellant told her that “Damian owed him some cash for some pot and he could pay [her] later.”
Brian dropped them off at Brandy’s apartment around 8:00 p.m. Shannon and Louie, who were friends of Brandy, were at the apartment. Together with Ms. O’Neill and appellant, they began drinking the whiskey right out of the bottle; appellant “was drinking big shots like chugging.” At first, there was no power in Brandy’s apartment, and they used candles for light. Appellant and Louie were able to get the power back on in the apartment. Ms. O’Neill turned on some music, “blast[ing]” it, and she and appellant were dancing around and stumbling and falling on each other.
They had been at the apartment for about an hour when Ms. O’Neill and Shannon went to get another bottle of whiskey at the store. The group had finished the first bottle and “wanted to drink more.” While Ms. O’Neill and Shannon were at the store, Ms. O’Neill’s brother and Louie arrived and said that “something went all bad and Justin was in a fight.” Ms. O’Neill was “freaking out, wondering what was going on.” Although Ms. O’Neill wanted to go back and find appellant, her brother and Louie told her they could not go back and that it was time to go. She did not see appellant again that night. Ms. O’Neill acknowledged that because of how much she drank, she does not have a clear recollection of the end of that evening.
Ms. O’Neill testified that she had never been in apartment number six and had never met Damian Bartl-Lewin, Dayna Caldwell, or Matthew Stephenson. She had seen appellant drunk on other occasions and believed that he was drunk on the night in question. She had also seen him do “crazy things” when he was drunk, such as jumping off the roof of a three-storey apartment building into a swimming pool. Another time when she and appellant had been drinking, they swam out into the middle of Port Costa, climbed up a 15 to 20-foot control tower, and jumped off.
On February 28, 2005, the jury found appellant guilty of count one, first degree residential burglary, and not guilty of count two, second degree commercial burglary.
On May 6, 2005, the court sentenced appellant to the middle term of four years in state prison. The court suspended execution of the sentence and placed appellant on formal probation for five years with various conditions. Appellant was to serve 365 days in county jail and participate in, and successfully complete, the Salvation Army alcohol and drug residential treatment program of at least one year in duration. Following completion of the program, appellant was to pursue an academic or trade education program as approved by the probation officer and to participate in an alcohol/drug aftercare program. Appellant was awarded 178 actual days and 88 good time/work days presentence custody credits. The court imposed a restitution fine of $200 and a court security fee of $20. (§§ 1202.4, 1465.8.)
On July 5, 2005, appellant filed a timely notice of appeal.
III. DISCUSSION
A. Background
During deliberations, the jury sent a note to the trial court. The note stated, “Question of law as stated; Definitions of burglary with regard to ‘unreasonable time period; temporary vs. permanent, property removal.’ ”
The court conferred with counsel, and then, over defense counsel’s objection, responded to the jury both orally and in writing as follows: “The requirement that in order for there to be a burglary or for property to be considered stolen there must be a specific intent to permanently deprive the owner of his or her property, is satisfied when property is taken with the intent that it will be returned only if the owner of the property made some coercive condition such as repayment of an alleged debt specified by the taker of the property.”
B. Analysis
A trial court has a duty to instruct on general principles of law relevant to the issues raised, and is required to instruct on every material element of an offense. (People v. Flood (1998) 18 Cal.4th 470, 480; People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Trial courts also have a duty to help a jury understand the legal principles it is asked to apply (People v. Beardslee (1991) 53 Cal.3d 68, 97) and to attempt to clear up any instructional confusion expressed by the jury. (§ 1138; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds in In re Steele (2004) 32 Cal.4th 682, 691.)
Penal Code section 1138 provides that, “[a]fter the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case,” they must be brought into court and “the information required must be given in the presence of, or after notice to,” the prosecutor and the defendant or his counsel.
The correctness of the instructions given is to be determined from the entire charge, not from a particular instruction or certain parts of the instructions viewed in isolation. Thus, “[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-756.) A court’s decision as to what additional explanation is required to satisfy the jury’s request for information is a discretionary one that will only be reversed for manifest abuse. (People v. Gonzalez, supra, 51 Cal.3d at p. 1213.) A violation of section 1138 warrants reversal only if prejudice appears. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Appellant contends the trial court erred in its response to the jury’s question. He claims it was an incorrect statement of the law and that it “gutted” his defense, essentially directing a verdict for the prosecution. At trial, appellant’s theory of the case was that appellant took the property but did not have the specific intent to deprive the victim of the property permanently. Rather, he only intended to keep it until a debt owed to appellant by the victim was paid. Thus, according to appellant, the property was not stolen because he had no specific intent to steal.
The jury was instructed with CALJIC No. 14.03 (Theft Intent - Further Defined), as follows: “The specific intent required which is an element of the crime of burglary, is satisfied by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment.” Appellant agrees that the court’s instruction with CALJIC No. 14.03 was proper.
Upon receipt of the jury’s note, the court discussed the matter with counsel and indicated its intention to provide the supplemental instruction it subsequently gave to the jury. Appellant’s counsel objected and instead asked the court to reread CALJIC No. 14.03. The court rejected this proposal because CALJIC No. 14.03 “does not really address the issue in this case.” The court explained that, pursuant to its reading of People v. Davis (1998) 19 Cal.4th 301 (Davis), this case did not involve a temporary taking, but rather a “taking on the condition that you will only return it under certain circumstances, coercive circumstances, [which] constitutes a permanent taking.”
In Davis, the defendant went into a Mervyn’s store, picked up a shirt displayed for sale, took the item to a sales counter on the other side of the store, and told the clerk that he had bought the item as a gift for his father but it did not fit and that he wanted to return it. Unbeknownst to the defendant, he had been placed under camera surveillance from the time he entered the store. The security agent telephoned the clerk and directed her to prepare a credit voucher. She did so, and the defendant signed it with a false name. The security agent detained the defendant as he walked away from the counter with the voucher. (Id. at p. 303.) The defendant was convicted in the trial court of theft of the shirt, and his conviction was upheld in the appellate court.
On appeal to the Supreme Court, the defendant argued, inter alia, that the intent to steal was lacking because he had no intent to permanently deprive Mervyn’s of the shirt; he intended to keep it temporarily, only long enough to exchange it for a “refund.” (Id. at p. 305.) The court observed that “the general rule is that the intent to steal required for conviction of larceny is an intent to deprive the owner permanently of possession of the property. [Citations.]” (Id. at p. 307.) However, “the general rule is not inflexible,” and “ ‘[t]he word “permanently,” as used here is not to be taken literally.’ [Citation.]” (Ibid.) The court described various categories of cases holding that the requisite intent to steal may be found even though the taker’s primary purpose was not to deprive the owner of the item permanently, i.e., a temporary taking that amounts to larceny. These include “(1) when the defendant intends to ‘sell’ the property back to its owner, (2) when the defendant intends to claim a reward for ‘finding’ the property, and (3) when, as here [in Davis], the defendant intends to return the property to its owner for a ‘refund.’ ” (Ibid.)
The Davis court reviewed a number of cases from California courts and others around the country. Among these was In re Albert A. (1996) 47 Cal.App.4th 1004 (Albert A.). In Albert A., the minor took Ali’s bicycle by threat of force, intending to keep it until the minor’s own bicycle, which allegedly had been stolen by one of Ali’s relatives, was returned. (Id. at p. 1006.) The appellate court affirmed the finding that the minor committed robbery, concluding that the minor intended to permanently deprive Ali of his bicycle. The Davis court indicated that the Albert A. “court’s theory appears to have been an extension of the ‘contingency rationale:’ ” (Davis, supra, 19 Cal.4th at p. 312) not only was the return of the property contingent on a future event, but also that contingency, the return of the minor’s bicycle, was as remote and unlikely to occur as winning the lottery, and thus could be disregarded as a matter of law. (Id. at pp. 1008-1009.)
In arguing that we should not credit Albert A., appellant seizes on the Davis court’s comment that, “Whatever its [Albert A.’s] theoretical validity, this seems an exaggerated view of the facts of the case.” (Davis, supra, 19 Cal.4th at p. 312.) It is apparent, however, that the Davis court did not disapprove of the statement of the law in Albert A., but only thought that court may have “exaggerated” the facts of the case before it.
The Davis court also took note of People v. Turner (1983) 145 Cal.App.3d 658 (Turner), disapproved on other grounds in People v. Majors (1998) 18 Cal.4th 385, 411. In Turner, “the defendant took jewelry and cash from his kidnapping victim, to be returned on condition that she take him to her house so as to enable him to continue a sexual assault on her. The court held the facts would not support an instruction that a temporary taking does not constitute robbery. The court’s rationale is unclear (see [Turner] at p. 680), but it may have had in mind a view similar to that expressed in State v. Hauptmann [(1935) 115 N.J.L.412,] 180 A. 809, i.e., that an intent to return on condition that the owner submit to an unlawful coercion should be deemed an intent to permanently deprive. (Id. at p. 819.)” (Davis, supra, 19 Cal.4th at p. 312, fn. 8.)
The Davis court concluded that the defendant’s intent to claim ownership of the shirt and to return it only on condition that Mervyn’s pay him a “refund” constituted an intent to permanently deprive Mervyn’s of the shirt within the meaning of the law of larceny, and thus an intent to steal. (Id. at p. 317.) The court explained that the intent to return an item only on condition that the owner pay a satisfactory refund is founded wholly on a contingency, and unless the contingency came to pass, the conversion would be complete. (Id. at pp. 315-316.) As a practical matter, the court observed that the risk that such a taking would become permanent was not a “mere theoretical possibility;” rather there was “substantial risk of permanent loss.” If the taker’s efforts to obtain a refund failed for any reason, there was “powerful incentive” to keep the item rather than put it back to avoid drawing attention to the theft. (Id. at p. 316.) “Common law and California cases thus establish that an intent to steal will be recognized when personal property is dealt with in such a way as to create an unreasonable risk of permanent loss.” (People v. Zangari (2001) 89 Cal.App.4th 1436, 1446.)
In our view, the trial court correctly applied the reasoning of Davis to the present case. Appellant took the victim’s property, claiming he only intended to keep it until the victim repaid a debt. The intent to return the property was based on the victim’s satisfying a coercive condition, and there clearly was a substantial risk of permanent loss where the alleged money owed was for the purchase of marijuana. Thus, appellant’s claimed intent to return the property to Bartl-Lewin only on condition that Bartl-Lewin repay appellant constitutes an intent to permanently deprive Bartl-Lewin of the property, and hence an intent to steal within the meaning of the law of burglary.
The fact that appellant sought repayment of an alleged debt, money he claimed he was owed by the victim, rather than seeking money or property from a person or entity that owed him nothing, makes no difference. Appellant was not entitled to a claim-of-right defense, and appropriately did not seek such an instruction in the trial court. “The claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938.) Putting aside the applicability of this defense where a defendant is attempting to satisfy a debt rather than to recover specific property which the defendant claims is his, it is settled that “the [claim-of-right] defense is not available where the claim of right to the property is founded in a ‘notoriously illegal’ transaction. (People v. Hendricks (1988) 44 Cal.3d 635, 642 [fee collection for prostitution services]; People v. Gates (1987) 43 Cal.3d 1168, 1182 [distribution of proceeds from forgery ring]; see also People v. Johnson (1991) 233 Cal.App.3d 425, 457-458 [payment for a drug deal].)” (People v. Tufunga, supra, 21 Cal.4th at p. 953-954, fn. 5.) Here, the alleged debt was for the purchase of marijuana.
Appellant sought, but the court declined to give, an instruction on mistake of fact. Appellant does not dispute that ruling.
Returning the to jury’s note, it is not surprising that the jury was confused about the specific intent required for burglary in light of appellant’s defense and the instructions it was charged to apply. The defense was, in essence, that the taking was temporary and for the purpose of collecting a debt that was owed to appellant. The only instruction on the state of mind necessary for burglary that the jury originally received was CALJIC No. 14.03, which stated that the intent to deprive an owner of property permanently or temporarily, but for an unreasonable time, constituted the intent to steal. Merely rereading CALJIC No. 14.03, as requested by appellant’s counsel, would not have shed any light on the issue of the legal effect of a conditional intent to return the property. After researching the matter, the trial court determined that taking the property of another to force repayment of a debt was analogous to the situations discussed in Davis, and that this defense theory was not available to appellant as a matter of law. The court did not abuse its discretion in so advising the jury.
Appellant argues that the trial court erred because the supplemental instruction did not answer the question posed. According to appellant, “[b]y the language of the question, it seems evident that the jury held some credence in appellant’s claim of a debt and simply wanted clarification concerning when a temporary removal might become a permanent removal, that is, at what point does the length of time become ‘unreasonable.’ ” We have no doubt that the jury was indeed confused about temporary versus permanent takings and whether a taking of property to collect on a debt would fit within that framework. However, it would have been error for the court to allow the jury to consider forced debt repayment under these circumstances as a defense to the intent to steal.
Obviously, it would have been preferable for the court and the parties to have resolved the viability of appellant’s debt repayment defense before trial. It bears noting that appellant also raised the defense that he was very intoxicated on the night in question, and argued that he did not have the specific intent for burglary because of that condition. By its verdict, the jury disbelieved this defense.
In addition, even if the court’s response did not track Davis closely enough, there was no prejudice to appellant. The court instructed the jury on the elements of burglary, the specific intent for theft, and that the prosecution had to prove appellant’s guilt beyond a reasonable doubt. The court also instructed the jury to consider the instructions as a whole.
Appellant’s counsel’s closing argument focused primarily on the contention that appellant did not have the specific intent for theft because he drank a lot of alcohol that evening and went upstairs to get money he felt was owed to him. The court instructed the jury on voluntary intoxication and its relevance to specific intent. The jury could have believed that appellant did not form the specific intent to take away Bartl-Lewin’s property and deprive him of it, but it did not.
Moreover, in finding appellant guilty, the jury necessarily concluded that appellant did not believe he was entitled to Bartl-Lewin’s property. The evidence established that appellant entered Bartl-Lewin’s apartment at least twice, carried away items of his property, and hid the property in apartment number three. When Bartl-Lewin arrived home and confronted him, appellant said nothing about the alleged debt, and fought Bartl-Lewin to escape, losing a shoe in the process. Appellant ran into apartment number three, but, aware that the police had been called, immediately fled from the rear of the building.
Thus, even if the court’s response to the jury should have been worded differently, the result would still be the same. The court was obligated here to instruct the jury pursuant to Davis to the effect that the conditional intent to return property upon the happening of some contingency, including that the owner submit to an unlawful coercion, constitutes the specific intent for burglary. The shortcoming was not in the court’s supplemental instruction; it was in the frailty of the defense theory.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J. Richman, J.