Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Nos. KA084510, TA099846, VA106234 Douglas W. Sortino, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Lee Edward Banner appeals from the judgment entered after his conviction by a jury on 11 counts, including seven counts of robbery. Banner contends his conviction on count 8 for robbery of a beauty store is not supported by sufficient evidence because he had a claim of right to the property taken and, in responding to a question from the jury, the trial court erroneously instructed the jury that there was no claim-of-right defense with respect to count 8. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Banner was charged in a second amended information with seven counts of second degree robbery (Pen. Code, § 211 ; counts 1 to 6, 8), one count of assault with a firearm (§ 245, subd. (a)(2); count 7), two counts of carrying a loaded firearm (§ 12031, subd. (a)(1); counts 9, 10), and one count of carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1); count 11). As to all 11 counts, the information specially alleged that at the time of the offenses Banner was released from custody on bail (§ 12022.1). The information also specially alleged that (1) as to the robbery counts 1 to 6 and 8, Banner personally had used a firearm (§ 12022.53, subd. (b)); (2) as to count 5, Banner personally and intentionally had discharged a firearm (§ 12022.53, subd. (c)); (3) as to counts 5 and 7, Banner personally had inflicted great bodily injury (§ 12022.7, subd. (a); and (4) as to count 7, Banner personally had used a firearm (§ 12022.5, subds. (a) & (d)).
Further statutory references are to the Penal Code.
2. The Evidence Presented at Trial
As noted, Banner’s appeal challenges only his conviction for robbery in count 8. The evidence relating to count 8 is as follows:
On August 30, 2008, about 1:30 p.m., Choong Choi, the owner of Rainbow Beauty Store in Lynwood, saw a tall, chubby Black man come into the store and start looking at hair products. She approached the man and helped him pick out her most popular hair relaxing curl kit and activating gel. The man brought the hair products to the cash register to pay, and Choi followed him to the register, standing next to him. The man took out a $100 bill and handed it to Choi’s niece, who was helping out at the store that day and standing behind the register. Because Choi’s niece was not sure about the bill, she handed it to Choi, who questioned its validity and asked the man if he had any smaller bills. The man took out another $100 bill and handed it to Choi. Choi’s niece then stepped aside from the register, and Choi accepted one of the $100 bills and went behind the register to make change for the man, his hair products having been bagged and placed on the counter. Choi opened the register, put in the $100 bill and began to make change, picking up four $20 bills. At that point the man pulled out a gun, pointed it at Choi’s chest and said, “‘Give me money.’”
Choi was shocked, and her niece was so scared that she ran outside of the store. Choi also tried to run outside, still with the four $20 bills in her hand. But when she got close to the door the man grabbed her by the neck, pulled her, pushed her against the wall and hit her on the head with the handle of his gun. After losing consciousness for 30 seconds to a minute, Choi saw the man, still pointing his gun, open the door and leave the store. Choi no longer had the four $20 bills in her hand.
Choi called the police, who came to her store and retrieved a copy of the surveillance videotape from that day, which was played to the jury at trial. Choi noticed that the videotape showed the man grab the four $20 bills from her hand after hitting her with the gun and knocking her unconscious. Although Choi was unable to identify the man at the preliminary hearing, at trial she testified that he was “[a] man who is very similar” to Banner. When looking at still photographs from the videotape, which were presented at trial, Choi testified that the photographs were of the person who had robbed her.
A number of the other robbery counts involved facts similar to those in count 8—where the assailant would bring items to the counter for purchase and demand money when the cash register was opened—including the liquor store robbery in count 6, which occurred later in the afternoon of August 30, 2008, after the beauty store robbery.
3. The Conviction and Sentence
Banner admitted the truth of the special allegation that he was on bail at the time of the charged offenses. The jury found him guilty on all 11 counts and found “true” all special allegations regarding firearm use and discharge and infliction of great bodily injury.
The trial court sentenced Banner to 47 years 4 months in state prison, consisting of: (1) the upper term of 5 years for the robbery in count 5, plus 20 years for the firearm-discharge enhancement under section 12022.53, subdivision (c), and 3 years for the great-bodily-injury enhancement under section 12022.7, subdivision (a); (2) consecutive terms of 1 year for the robberies in counts 1, 3, 6 and 8, plus 3 years 4 months on each count for the firearm-use enhancements under section 12022.53, subdivision (b); and (3) two years for the on-bail allegation under section 12022.1. The court imposed concurrent terms of: (1) three years for the robberies in counts 2 and 4, plus 10 years on each count for the firearm-use enhancements under section 12022.53, subdivision (b); and (2) two years for the carrying of a loaded firearm in count 9. The court imposed but stayed pursuant to section 654 sentences on (1) the firearm-use enhancement under section 12022.53, subdivision (b), for count 5; (2) the assault with a firearm and related enhancements in count 7; (3) the carrying of a loaded firearm in count 10; and (4) the possession of a concealed firearm in a vehicle in count 11. In a separate case, which involved a guilty plea to a charge of receiving stolen property, the court sentenced Banner to a concurrent 2-year term.
DISCUSSION
1. The Evidence Is Sufficient to Support the Robbery Conviction on Count 8
“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.) A defense exists to a robbery charge when “the defendant is seeking to regain specific property in which he in good faith believes he has a bona fide claim of ownership or title.” (People v. Tufunga (1999) 21 Cal.4th 935, 950 (Tufunga).) Based on this defense, Banner contends his robbery conviction on count 8 is not supported by sufficient evidence because he had a claim of right to the money he took from the beauty store and thus did not possess the requisite intent to take the property of another. But the claim-of-right defense is not applicable based on the facts relating to count 8, and the evidence is more than sufficient to support the finding that Banner intended to take the property of another when he took four $20 bills from Choi, the beauty store’s owner.
The Supreme Court specifically has rejected the claim-of-right defense in the context of the recovery of a debt. In Tufunga, supra, 21 Cal.4th 935, while affirming in general the existence of a claim-of-right defense, our Supreme Court overruled its earlier decision in People v. Butler (1967) 65 Cal.2d 569, which had extended the claim-of-right defense to debt recovery. (Tufunga, at p. 956.) The Tufunga Court held, “to the extent Butler, supra, 65 Cal.2d 569, extended the claim-of-right defense to robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated—as opposed to forcible takings intended to recover specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title—it is unsupported by the statutory language [in section 211], further contrary to sound public policy, and in that regard is overruled.” (Tufunga, at p. 956.)
In rejecting the availability of a claim-of-right defense when a robbery is accomplished to satisfy a debt, the Tufunga Court quoted with approval a Wisconsin Supreme Court case, which too declined to allow a claim-of-right defense for debt collection: “‘The distinction between specific personal property and money in general is important. A debtor can owe another $150 but the $150 in the debtor’s pocket is not the specific property of the creditor. One has the intention to steal when he takes money from another’s possession against the possessor’s consent even though he also intends to apply the stolen money to a debt. The efficacy of self-help by force to enforce a bona fide claim for money does not negate the intent to commit robbery. Can one break into a bank and take money so long as he does not take more than the balance in his savings or checking account? Under the majority rule [as it then existed, allowing a claim of right defense to any robbery] the accused must make change to be sure he collects no more than the amount he believes is due him on the debt. A debt is a relationship and in respect to money seldom finds itself embedded in specific coins and currency of the realm. Consequently, taking money from a debtor by force to pay a debt is robbery. The creditor has no such right of appropriation and allocation.’” (Tufunga, supra, 21 Cal.4th at pp. 954-955, quoting Edwards v. State (Wis. 1970) 181 N.W.2d 383, 388.)
Applying its holding that a claim-of-right defense cannot be used to justify a robbery for the alleged purpose of collecting a debt, the Tufunga Court concluded that the defense was available in that case because, according to the defendant’s version of the events, he was not taking property to collect on a debt, but rather retrieving the specific money that he had brought to the alleged robbery victim’s house. In Tufunga, defendant testified that he waspaid $200 in cash on the day of the alleged robbery by his employer/relative, who corroborated that fact, and brought that money to his ex-wife’s house, putting it on the coffee table and stating it was to help pay a bill. (Tufunga, supra, 21 Cal.4th at p. 941.) When defendant and his ex-wife began to argue, and his former mother-in-law went to call 911, defendant’s ex-wife took the money and put it in her bra. (Id. at pp. 941-942.) Defendant believed that his ex-wife would give the money to her mother and that the two were out to take the money. (Id. at p. 942.) Although defendant demanded the money, his ex-wife refused, and he wrestled with her, reached into her bra and took it back. (Ibid.) Based on these facts, the Supreme Court concluded that the defendant could assert a claim-of-right defense because, if his version of the events were believed, “he brought $200 into the victim’s home and took back the same currency upon fleeing.” (Id. at pp. 944-945; see also People v. Russell (2006) 144 Cal.App.4th 1415, 1430-1431 [defendant’s belief that motorcycle was abandoned, corroborated by other evidence, supported claim-of-right defense to charge of receiving stolen property].)
In this case, under Tufunga, the claim-of-right defense was not available to Banner on count 8. Contrary to Banner’s claim, the facts here are not like those in Tufunga, where evidence demonstrated that the defendant was not collecting on a debt but was retrieving specific money he had brought to the victim’s house. Here, in contrast, Banner had no right to the specific bills in Choi’s hand and could not use force to obtain that money to collect on a debt stemming from his purchase of hair products as a means to get Choi to open the cash register so that he could demand money. Based on Banner’s asking Choi for money and then, when she ran, grabbing her by the neck, pulling her, pushing her against the wall, hitting her on the head with the handle of his gun and then taking the money from Choi’s hand while she was unconscious, the evidence was more than sufficient to support the conclusion that Banner possessed the requisite intent to take the property of another and the jury’s resulting robbery conviction on count 8. (See People v. Mincey (1992) 2 Cal.4th 408, 432 [on challenge for insufficient evidence we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment”]; People v. Bolin (1998) 18 Cal.4th 297, 331 [reversal on the ground of insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]’”], quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
2. The Trial Court Did Not Err In Answering the Jury’s Question Regarding Count 8
While deliberating, the jury requested a readback of Choi’s testimony and asked the trial court, “[W]ho does the money belong to that Ms. Choi had in her control?” In addition to providing the jury with a readback of the requested testimony, the trial court, relying on Tufunga, supra, 21 Cal.4th 935, further instructed the jury, “With respect to the alleged robbery against Mrs. Choi, there is no defense of a claim of right to the property taken. [¶] One has the intention to steal when he takes money from another’s possession against the possessor’s consent even though he also intends to apply the stolen money to a debt.” Banner contends that the trial court committed reversible error by instructing the jury that there was no claim-of-right defense with respect to count 8.
Before sending the case to the jury, the trial court denied Banner’s motion under section 1118.1 to dismiss the robbery charge on count 8 on the ground that he had a claim of right to the money taken and the People thus had not proved the requisite intent to take the property of another. The trial court then concluded as well, based on Tufunga, supra, 21 Cal.4th 935, that there was no claim-of-right defense available on count 8.
“‘Whether or not a given set of facts provides the necessary support for drawing a particular inference is a question of law.’” (People v. Creath (1995) 31 Cal.App.4th 312, 319.) It thus was up to the trial court to determine whether the facts relating to count 8 could lead to a claim-of-right defense. The trial court properly determined under Tufunga, supra, 21 Cal.4th 935, that the defense was not available here and, as a result, committed no error by so instructing the jury.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.