Opinion
E066040
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN LEE DODSON, Defendant and Appellant.
Steven D. Klarich and Wallin & Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1401136) OPINION APPEAL from the Superior Court of Riverside County. Richard J. Oberholzer and Becky Dugan, Judges. Affirmed. Steven D. Klarich and Wallin & Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
While high on cocaine, defendant and appellant Ryan Lee Dodson, a convicted felon, contacted a company that provided the companionship of exotic dancers and procured the services of Crystal Black to dance for him for several hours at a rate of $200 per hour in his home. Black arrived with her bodyguard Vernon Butts. Defendant paid Butts $200 up front and worked out a deal to pay another $200 when Black's services were complete. Black and defendant went to his bedroom where she started to dance for him. He then asked Black if they were going to have sex. When Black told him no, he got angry and pulled out a handgun from his dresser. He went out to the car, held a gun to Butts, demanded his $200 back, and after receiving the money, told them to leave. He then attempted to hire another exotic dancer. While speaking with the agency, which coincidentally was the same agency for which Black worked, the police arrived at his home. Defendant told the agency not to bother sending a girl over because there was trouble at his house, and that if he saw police officers approach his home, he would shoot them.
Defendant was convicted of robbery (Pen. Code, § 211; count 1); assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2); deterring a police officer from performing his or her duties (Pen. Code, § 69; count 3); possession of a semiautomatic firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1); count 4); and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 5). In addition, the jury found true the special allegation that defendant personally used a firearm during the commission of the robbery within the meaning of Penal Code section 12022.53, subdivision (b). Defendant was sentenced to 13 years eight months to be served in state prison.
Defendant claims on appeal as follows: (1) the trial court erred by denying his Penal Code section 1118.1 motion for the robbery because insufficient evidence was presented to support the charge in the People's case-in-chief; (2) the trial court erred by including a portion of CALCRIM No. 1863 involving illegal activity for the claim-of-right instruction; (3) insufficient evidence was presented in the People's case-in-chief to support his conviction of attempting to prevent a police officer from performing his duties under section 69, subdivision (a) warranting granting of his section 1118.1 motion; (4) the trial court erred by failing to sua sponte instruct the jury with a portion of CALCRIM No. 2670 pertaining to an officer's lawful performance of his duty; (5) the trial court erred by denying his section 1118.1 motion on the felon in possession charge because insufficient evidence was presented during the People's case-in-chief to support the elements of the crime; (6) the trial court erred by denying his motion for new trial on the ground that jurors were observed sleeping during closing arguments; and (7) cumulative errors rendered his trial fundamentally unfair. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
In December 2013, Crystal Black worked for Select Referral Service (SRS), which employed exotic dancers. Black performed striptease dances for clients in their homes. A client would contact the SRS office and Black would be sent to the client's home. Her driver and bodyguard was Vernon Butts. Butts did not carry any type of weapon. Black only danced and never performed sexual acts. She never agreed to have sex with clients in exchange for money because she knew it was illegal. SRS did not advertise that the girls would engage in sexual acts.
On December 21, sometime after midnight, Black and Butts were sent to a home on Marguerita Avenue in Riverside by JoAnn Lenci and Sandra Mooney, who worked in the office at SRS scheduling dancers. Butts and Black were told that Black would be paid $400 to dance for two hours. They parked in front of the house.
Black went to the front door; defendant answered the door. There was no one else in the house. Black went inside the house. She observed a white substance in lines on a mirror that was on a coffee table in the living room. Defendant offered her some but she refused. Defendant seemed anxious and his eyes were big. They went into the garage to smoke a cigarette. She did not recall talking about sex in the garage.
Black asked defendant for the $400. Defendant did not agree to pay the full $400. Black contacted the SRS office because defendant did not want to pay the full amount. Defendant did not want to pay the full $400 up front because he had been "burned" by girls before who took his money and then left without providing any services. He negotiated paying $200 up front. He agreed he would pay the remaining $200 after the services were performed. Defendant paid $200 to Butts.
Defendant and Black went into his bedroom. Defendant lay down on the bed and Black began dancing. Black took her shirt and bra off. Defendant then asked Black, "Are we going to have sex?" Black told him no. Defendant was mad. Defendant went to his dresser and grabbed a handgun. Defendant told Black, "I'm going to go get my fucking money back." Defendant then quickly went outside. Black put her shirt back on and ran out of the house. She yelled to Butts that defendant had a gun.
Defendant approached Butts and held the gun to his back. Butts believed that the gun used by defendant was a nine-millimeter, semiautomatic gun. Defendant cocked the gun. He told Butts that he wanted his "fucking money back." Butts told defendant to calm down and that he would get him his money. Butts reached into the car to retrieve the money and handed it to defendant. Defendant told them to leave. Black got into the car and they drove away.
Butts called the police. Butts told the 911 operator that someone had just pulled a gun on him. He told them defendant's address and that defendant had cocked the gun. Butts stated that defendant was using cocaine or speed.
Butts parked and they waited. Black wanted to leave and wanted nothing to do with the situation. Butts received a phone call from the SRS office that defendant had said if the police officers went to his door, he would shoot them. Butts gave that information to the police officers.
Lenci worked for SRS; she scheduled exotic dancers for customers. Lenci would be explicit when talking to customers that sex would not be involved. The girts would dance topless and fully nude.
On December 21, Lenci was working with Mooney in the office. They received a call from a person named Ryan asking for a dancer to come to his house on Marguerita Avenue. Lenci pretended to be the dancer who would come to his house. She told him she would charge him $200 for each hour. They did not talk about whether sex would be involved. She contacted Butts to take Black to the house.
Lenci received a phone call from defendant complaining about how much he was going to have to pay. Defendant complained because he did not receive sex.
Later, Butts called and stated that defendant had a gun and took the $200. Defendant called Lenci four or five times after Butts called the police. Defendant called and asked for a dancer named Nikki to come to his house. Lenci believed defendant had called the wrong number and likely believed that he was calling another agency for girls. Defendant then told Lenci not to send a girl out to his house because he had a "scuffle" at his house. Defendant also told her that that there were police officers at his house and he had locked the front gate. He stated if he saw a "cop he was going to shoot them." Defendant told Lenci that he had weapons in his house, he was not afraid to use them and he was locked and loaded. He was not afraid to kill a cop. Lenci told Mooney, who told Butts, that defendant had made these threats over the phone so that he could tell the police officers. Lenci did not know if Butts told the police officers.
Riverside Police Sergeant Jayson Wood was called to defendant's home. Wood was informed that defendant may be armed with a handgun. Wood was advised by the two witnesses present at the scene that a person named Ryan had kept calling their office making threats he would kill a police officer if he or she approached his house. This information kept Wood from approaching the residence despite the knowledge that defendant had been accused of committing a crime.
Sergeant Wood was able to obtain defendant's cellular telephone number and called defendant after he instructed officers to surround the house. Wood spoke with defendant. Wood instructed defendant to exit the house because he was being accused of robbery. Defendant did not refuse to come out of the house but he hung up on Wood. Wood called back multiple times and defendant finally answered a second time. Defendant immediately hung up when he discovered it was Wood. Further, Wood repeated over a public address system that defendant needed to exit the house. They repeated the request for almost five hours until SWAT arrived with an armored vehicle.
Riverside Police Detective Mike Medici also assisted with the barricade situation at defendant's home. Officers had surrounded the house and had the street blocked off. Medici went back to the station to prepare a search warrant. The SWAT team drove the armored vehicle into a chain-link fence on the property knocking it down. Thereafter, defendant voluntarily exited his house. Defendant was transported to the police station. On the way, he told the transporting officer that he was "high" on cocaine all night.
Detective Medici obtained a search warrant to go inside the house. Medici found a significant amount of cash in defendant's bedroom. Numerous weapons were found in a gun safe in the house. An AR-15 rifle found in the safe could shoot 550 yards. The officers had positioned themselves 80 yards from the house. There was a scope found on the rifle that would allow for it to be shot further. Another rifle was found that could shoot 1,000 yards. A semiautomatic Sig Sauer 45-caliber handgun was found in the safe. Rounds of ammunition for a 45-caliber gun were found. Three other shotguns were found. Another handgun called a Mini-14 or Mini-30 that shot 223-caliber rounds was found. Ammunition for the AR-15 was found. An unloaded or loaded magazine was found in the safe and an unloaded magazine was found in one of the rooms. None of the firearms were loaded. There were at least one thousand rounds of ammunition found.
In addition, a rifle with a scope, a handgun and three shotguns were found inside a trailer parked on the property. The weapons were not illegal.
Defendant never threatened Sergeant Wood over the phone. He never shot at the officers. Defendant made no threatening motions toward the officers and eventually peacefully surrendered. Defendant was not seen with a weapon by any of the officers.
B. DEFENSE
Defendant testified on his own behalf. In December 2013, defendant owned a liquidation center which sold home improvement material at liquidation cost; a lot of the sales were "cash sales." The cash found in his house was money from the business that had not been deposited.
On December 20, he had been at a bar in Riverside and then came home. He used cocaine throughout the night. When he got home, he called for an exotic dancer off an advertisement. When he called the office, he told them he wanted "company." He thought he was talking to the person who would come to his house. He never mentioned sex. The person on the phone agreed to come to his house and stated she would charge $200 an hour. Defendant ingested more cocaine before the dancer arrived.
When Black arrived, they immediately went to the garage and smoked a cigarette. He saw a large male inside an SUV, who he identified as Butts, parked outside. Black told defendant that he needed to pay her driver. Defendant immediately took the $200 to Butts. He and Black never discussed sex while in the garage. He believed the $200 was for her to just be at his house and maybe strip.
Once he paid the $200, they went back inside the house. Black immediately asked him for more money. Defendant believed she would take the additional money and then leave as had occurred with other dancers that had come to his house.
Black wanted another $200. Defendant agreed he would give her another $200 once the one hour was up and if he wanted her to stay longer. Black said she would have to call her office to make sure that was okay. Defendant spoke with someone in the office who advised him he had to pay the money immediately or Black would leave. Defendant told Black to leave. He grabbed the Sig Sauer handgun from his dresser to make sure that Black did not tell Butts that he had valuables in the house. Defendant insisted they never talked about having sex. He denied Black ever took off her bra or shirt.
Defendant and Black went out to the SUV. Black told Butts that defendant had a gun. Defendant told Butts he wanted his money back. Butts said okay and reached into the SUV. Defendant became concerned Butts was getting a gun. He pulled the gun up and racked a bullet; the gun was loaded. Butts gave defendant the $200 without incident. Butts and Black started to drive off and Butts yelled to him that he was calling the police.
Defendant agreed he did not immediately exit his home when the police arrived and that he hung up on Sergeant Wood. He denied he ever told anyone or the officers that he would shoot any police officer who came to his door. Defendant admitted he had been convicted of felonies in 1998 and 2002. He indicated the felonies had occurred so long in the past he had forgotten he could not possesses a firearm.
Defendant tried to call other exotic dancers to come to his house after Black left. He denied he told anyone not to come because the police were outside. He unloaded the Sig Sauer gun and put it back into the gun safe after Butts and Black left. He lied to police officers that he did not know the combination to the gun safe that night.
Defendant spoke with Detective Medici that night and denied that he ever had a gun. Defendant was high on cocaine when he spoke with Medici.
Defendant called a friend while the police were outside and told her that he had screwed up. He also texted his girlfriend, "If something happens to me, I fucked up. Just know I love you." He explained to his girlfriend that somebody tried to rob him and the cops were in front of his house. He told her he "fucked up" by having an exotic dancer in the house. His girlfriend convinced him to exit his house.
DISCUSSION
A. INSUFFICIENT EVIDENCE
Defendant contends the trial court should have dismissed the charges of robbery (Pen. Code, § 211), impeding an officer in the performance of his or her duties (Pen. Code, § 69), and being a felon in possession of a firearm (Health & Saf. Code, § 11550, subd. (a)) upon his Penal Code section 1118.1 motion because the evidence presented during the People's case-in-chief was insufficient to support the charges.
At the end of the People's case-in-chief, defendant brought a section 1118.1 motion for all of the charges. Defendant argued specifically for count 3 there was no clear evidence of intent by defendant that any threat was to be conveyed to the police officers. He did not repeat the threat when the officers arrived. The People argued that defendant telling another person that he wanted to kill a cop if they came up to his house, and telling that third person police officers were at the location, supported the charge. Further, defendant was known to have a firearm. Section 69 contemplated that a third party would advise police officers of a threat. Defendant responded that the jury was asked to speculate based on evidence that did not support a reasonable inference of guilt. The trial court denied the motion generally and specifically as to count 3.
1. STANDARD OF REVIEW
"We often address claims of insufficient evidence, and the standard of review is settled. 'A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Moon (2005) 37 Cal.4th 1, 22.)
"The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) "The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review." (People v. Stevens (2007) 41 Cal.4th 182, 200.)
2. ROBBERY
Defendant claims his robbery conviction should be reversed because he had a claim of right, thereby negating his felonious intent, to the $200 he took from Butts due to Black failing to perform any services. The trial court should have dismissed the charge pursuant to his section 1118.1 motion.
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.' [Citation.] The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear." (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)
We note that defendant's appellate counsel in his opening brief has provided a history of robbery and the "claim of right" defense taken virtually verbatim from People v. Tufunga (1999) 21 Cal.4th 935, 946-948, but has failed to provide citation to the case for this language.
" '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.' [Citation.] However 'the [claim-of-right] defense is not permitted where the claimed right to the property is rooted in a "notoriously illegal" transaction.' " (People v. Anderson (2015) 235 Cal.App.4th 93, 99.) As will be discussed further post, the jury was instructed on the claim-of-right defense, and that if defendant was engaged in an illegal activity he could not rely on the defense.
Here, the jury could have reasonably concluded that defendant believed he was paying for sex—a notoriously illegal transaction—when he gave Butts the $200. (See People v. Hendricks (1988) 44 Cal.3d 635, 642.) This was supported by his extreme reaction when Black told him they were not going to have sex. At that time, Black was performing her dance and had removed her clothing, the activity she thought she was at the home to perform. If defendant actually believed he had paid for her to dance, there would have been no reason for him to become angry with Black. He immediately told her that he was going outside to get his "money back." Moreover, he called Lenci and complained that he did not receive sex. The jury could reasonably conclude that he believed he was paying Black for sex and became angry when he did not receive the service for which he paid.
Moreover, the fact that Black was not offering sex to defendant for money, or that SRS did not advertise sex, is not dispositive. The important determination was whether defendant had a "good faith" belief that he was entitled to the money. He could not possess a good faith belief that he had a right to the return of his money if he was intending to pay Black to have sex with him. "As a matter of law, one cannot have a good faith belief that he has a right to property when that 'right' is rooted in a notoriously illegal transaction." (People v. Gates (1987) 43 Cal.3d 1168, 1182, overruled on another point in People v. Williams (2010) 49 Cal.4th 405.)
Defendant contends that no services were performed by Black "legal or illegal." He claims, "because he did not receive any services whatsoever, he was entitled to receive his money back." This is not an accurate reflection of the record. Black testified that she had begun to dance and took off her top and bra. Although defendant testified that Black performed no services, the jury could reasonably rely upon Black's testimony that she began dancing. It was then that defendant asked if they were going to have sex and she told him no. He then told her to leave and he wanted his money back. The jury could reasonably conclude that he stopped her from dancing because he had paid to have sex with her. The jury could reasonably conclude that defendant was engaged in illegal conduct and reject his claim of right to the money.
3. IMPEDING A POLICE OFFICER IN THE LAWFUL PERFORMANCE OF HIS OR HER DUTIES
Defendant contends the evidence was insufficient to support his conviction of attempting to impede a police officer in the performance of his or her duties under section 69 because the threat made by him to an unknown third party was too tenuous to establish he meant the threat to be conveyed to the officers outside of his house. In addition, there was no "indication" that the officers were acting lawfully.
Section 69 provides, "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
References to Penal Code section 69 are to the version in effect from October 1, 2011, to December 31, 2015.
"Section 69 'sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.' [Citations.] The two ways of violating section 69 have been called 'attempting to deter' and 'actually resisting an officer.' " (People v. Lacefield (2007) 157 Cal.App.4th 249, 255, disapproved of on other grounds in P. v. Smith (2013) 57 Cal.4th 232.) "[S]ection 69 proscribes interference with a police officer's performance of his duties by 'threat' or by 'violence' and . . . the section is violated by a 'threat' without violence." (In re M.L.B. (1980) 110 Cal.App.3d 501, 504.) "Unlike resisting, the attempt to deter does not require the officer to be performing his duties at the time of the crime. The attempt may be intended to deter the officer's future performance of duties." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530.)
Defendant made a threat over the phone to a person he believed to be an exotic dancer who he was hiring to come to his house. He advised the person not to come to his house because the police were at his house. He additionally stated that if he saw a police officer at his home, he would shoot the officer. He said he was locked and loaded. He also stated he was not afraid to kill a cop. Unbeknownst to defendant, he was speaking with Lenci, who passed on the threat to Butts and Black.
Defendant communicated the threat while the police were reported to be at his house. Although the People contend defendant was aware he was speaking with Lenci, the evidence showed that he believed he was talking to another person. Even if defendant thought he was speaking with a stranger, it was reasonable for the jury to assume that upon hearing such a threat, defendant would understand that person would report such threat to the officers. Defendant stated that he had loaded weapons and would shoot any police officers that he saw. Sergeant Wood heeded the warning and did not approach the home to investigate the crime. Here, defendant could reasonably anticipate the person he was talking to would report his threat to kill one of the police officers who came to his house to investigate the robbery. Defendant provides no relevant authority that the threat of violence must be made directly to the police officers or to a known person.
Defendant contends for the first time on appeal there was no evidence that the police officers were lawfully performing their duties. Defendant does not explicate in this argument how the police officers were acting unlawfully but merely states that there was no indication if they "came into" his home that they would have been acting lawfully. He also states they had to inform him that he was being arrested before entering his home.
However, lawful performance of duties includes investigation of crimes. (People v. Orloff (2016) 2 Cal.App.5th 947, 953 [the defendant's threat to officer "Hey, you're a fuckin' dead nigger if you keep this shit up" based on the officer investigating the defendant for a crime he possibly committed supported a section 69 conviction].) All of the officers testified they had been dispatched to defendant's home based on a report of an armed robbery that had been committed at the home. Defendant refused to exit his home despite speaking with Sergeant Wood and being repeatedly summoned outside through the public address system. Defendant's threat was that if he saw an officer outside his home, he would shoot the officer. None of the officers were able to perform their duty to investigate the crime because they feared they would be shot. They were unable to question defendant about the crime or secure the gun that was used. Detective Medici was forced to obtain a search warrant for the home and the SWAT team had to knock down the front gate in order to get defendant to finally exit the home. The officers were performing their lawful duty to investigate a crime but were thwarted by defendant's threats. The evidence presented in the People's case-in-chief supported defendant's conviction of violating section 69.
4 FELON IN POSSESSION OF A FIREARM
Defendant insists that his conviction of violating section 29800, subdivision (a)(1) should have been dismissed on his section 1118.1 motion because the People did not admit sufficient evidence that he was a convicted felon prior to the close of its case-in-chief. He makes this argument recognizing that the parties stipulated to his convicted felon status prior to trial.
Prior to trial, defendant agreed to enter into a stipulation that he had been previously convicted of a felony for count 4. The prosecutor noted after the denial of defendant's section 1118.1 motion that it had not yet presented the stipulation regarding defendant being a convicted felon to the jury. Defendant's counsel made no argument that count 4 should be dismissed. The parties addressed the exhibits. Once that was resolved, the trial court asked the prosecutor, "The People rest then?" The prosecutor responded, "Yes, your honor. I just have to do that stipulation." The trial court responded, "Oh, okay, except the stipulation. You'll rest after the stipulation."
The jury trial resumed. The People read the stipulations about the guns found in the trailer on the property. The People then rested without reading the stipulation on defendant being a convicted felon. Defendant made no objection. Thereafter, the jury was informed the parties had stipulated that defendant had previously been convicted of a felony and that the jury must accept the stipulation as true.
Defendant insists that the trial court should have granted his motion of dismissal pursuant to section 1181.1 because the People did not introduce the stipulation prior to resting. However, that specific argument was never made by defendant in making his section 1181.1 motion. We have no doubt that had defendant made that argument, since he had stipulated to the fact that he was a convicted felon, the trial court would have simply reopened the People's case-in-chief. (People v. Riley (2010) 185 Cal.App.4th 754, 764-765 [the trial court has discretion to permit prosecution to reopen its case-in-chief].) Moreover, when the instructions were given, defendant made no objection to the giving of the stipulation at that point in the proceeding. Defendant has failed to show any error or prejudice. Substantial evidence supported his conviction.
B. INSTRUCTIONAL ERROR
Defendant makes two instructional error arguments. First, he claims the trial court erred by giving a portion of CALCRIM No. 1863, that the jury should consider in determining defendant's claim-of-right defense whether he was engaged in illegal conduct. In addition, he contends that the trial court had a sua sponte duty to instruct the jury with a portion of CALCRIM No. 2670, advising the jurors regarding officers lawfully performing their duty in arresting defendant in his home.
" ' "[E]ven in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." [Citation.] That duty extends to " 'instructions on the defendant's theory of the case, including instructions "as to defenses ' "that the defendant is relying on . . ., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' " ' " ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 873.)
Generally, "[a] party is not entitled to an instruction on a theory for which there is no supporting evidence." (People v. Memro (1995) 11 Cal.4th 786, 868, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172.) It is "error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
1. CALCRIM NO. 1863
Defendant contends the trial court erred by instructing the jury over his objection that it should consider whether in determining his claim-of-right defense if the $200 was the product of an illegal activity. He insists such instruction was erroneous and violated his federal due process rights.
Here, the jury was instructed, without objection by either party, that "If the defendant obtains specific property under a claim of right to that property, he did not have the intent required for the crime of robbery. In deciding whether the defendant believed that he had the right to the property, and whether he held that belief in good faith, consider all the facts known to him at the time he obtained the property, along with all the other evidence in the case. [¶] The defendant may hold a . . . belief in good faith, even if the belief is mistaken or unreasonable. But if the defendant was aware of the facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith." The dispute arose over the following language: "This defense does not apply if the claim for property arose from an activity commonly known to be illegal or known by the defendant to be illegal."
As stated ante, substantial evidence supported the jury's conclusion that defendant had the felonious intent to commit robbery. He had no claim-of-right defense because he was engaged in illegal activity. The evidence supported instructing the jury with the portion of CALCRIM No. 1863 regarding illegal activity.
2. CALCRIM NO. 2670
Defendant insists the trial court erred by failing to give the portion of CALCRIM No. 2670 relating to "entering a home without a warrant" for the charge of violating section 69 because lawful performance of the officer's duty is an element of the crime. He insists that when officers come to a home to arrest someone they must make it known an arrest is being made and act with exigent circumstances. He claims that if the officers had entered his home without a warrant or without exigent circumstances the officers would have been acting unlawfully. Moreover, there was no evidence when the warrant was obtained.
There is no discussion in the record regarding CALCRIM No. 2670. The jurors were instructed with a portion of CALCRIM No. 2670 that the officers had to be lawfully performing their duties as peace officers. The Jury was informed, "A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using any unreasonable or excessive force in his or her duties." It was instructed that probable cause to arrest exists when "facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime."
Defendant merely claims that "the court failed to give the jury the portion of CALCRIM No. 2670 relating to entering a home without a warrant." He does not specify the language that should have been given. Although we can surmise the language that defendant claims should have been included by looking at CALCRIM No. 2670, we need not make the argument for him. His conclusory claims of error fail. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 ["To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error".)
We can surmise the language that defendant wanted included was as follows: "[In order for an officer to enter a home to arrest someone without a warrant [and without consent]: [¶] 1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home; [¶] AND [¶] 2. Exigent circumstances require the officer to enter the home without a warrant." (CALCRIM No. 2670.)
Moreover, as noted in discussing the sufficiency of the evidence, the officers were deterred from performing their duty of investigating the crime that was purported to have occurred at the home. Defendant had threatened to shoot any officers that he saw outside his home. There was no indication that the officers went to the property to arrest defendant; they were seeking to investigate the victims' claims that a crime had been committed. Defendant's refusal to cooperate with the officers required that the officers obtain a search warrant to gain entry into defendant's home.
Even if the officers were at the home to gain entry, Detective Medici testified that he obtained a search warrant. Defendant complains there was no evidence that the search warrant was obtained prior to the SWAT team knocking down his gate. However, the record does not establish when the search warrant was actually obtained. It was reasonable that it was obtained prior to this action. Further, defendant does not explain how the knocking down of the gate constituted illegal entry into the home without a warrant or exigent circumstances. Defendant has failed to meet his burden on appeal of showing error.
C. MOTION FOR NEW TRIAL
Defendant insists the trial court erred by failing to conduct an evidentiary hearing or having witnesses testify in denying his motion for new trial.
1. ADDITIONAL FACTUAL BACKGROUND
On September 2, 2015, defendant filed his motion for new trial based on juror misconduct. Defendant alleged two persons who were present in the audience during the trial observed jurors sleeping during the closing arguments and giving of the instructions. Defendant submitted two declarations.
An unsigned declaration from a person named James Kirk was submitted. He was present during the final day of trial on June 5, 2015. During closing arguments, he saw "at least two jurors that appeared to be asleep during significant portions of the arguments." In addition, Kirk observed a White male juror who was sitting in the back row who "nodded off" to the point that his notepad slipped from his hand and fell to the floor during the prosecution's argument. The same juror was nodding off during the defense argument. Kirk also observed a White female in the front row "who appeared" to be asleep with her eyes closed and head down during the defense closing argument.
Ryan Didur signed a declaration that he was present during the final day of trial. He observed a Hispanic female juror seated in the front row "who appeared" to be asleep with her eyes closed and leaning her head to the side during the prosecutor's argument. He also saw a White female in the front row "who appeared" to be dozing off with her eyes closed "during the arguments."
On May 13, 2016, the trial court stated it had read the motion for new trial and that the parties had been involved in a chamber conference, which was not reported. The trial court stated on the record that the motion for new trial was denied. The trial court indicated the allegation was that a couple of jurors were sleeping during closing argument. It stated, "As we all know, closing argument is not evidence, and I have—other than declarations, which are very brief to say the least, so I have—it's certainly not enough to cause me to give [defendant] a new trial, so that motion is denied."
2. ANALYSIS
A new trial "may be granted . . . . if the jury has engaged in misconduct which has prevented fair and due consideration of the case." (People v. Hayes (1999) 21 Cal.4th 1211, 1255.) "When a trial court is aware of possible juror misconduct, the court 'must "make whatever inquiry is reasonably necessary" ' to resolve the matter. [Citation.] It must do so, however, only when the defense comes forward with evidence that demonstrates a 'strong possibility' of prejudicial misconduct." (Ibid.)
" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Carter (2005) 36 Cal.4th 1114, 1210, superseded by statute on other grounds, as recognized by Verdini v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
In People v. Bradford (1997) 15 Cal.4th 1229, our Supreme Court recognized that trial courts are reluctant to overturn jury verdicts on the ground of juror inattentiveness. It noted several courts had declined to order a new trial "in the absence of convincing proof that the jurors were actually asleep during material portions of the trial." (Id. at p. 1349.) The Supreme Court concluded, "Although the duty to inquire as to juror misconduct is activated by a lower threshold of proof, in the present case the absence of any reference in the record to the juror's inattentiveness over a more substantial period indicates that the trial court did not abuse its discretion in failing to conduct an inquiry." (Ibid.)
Here, the unsigned declaration from Kirk was not admissible evidence of jury misconduct. (See People v. Bryant (2011) 191 Cal.App.4th 1457, 1470.) The only proper declaration before the trial court was the signed declaration from Didur. That declaration merely identified one female juror "who appeared" to be asleep during the prosecutor's argument and another juror in the front row "who appeared" to be dozing off with her eyes closed "during the arguments."
There was only one declaration stating that two of the jurors appeared to be asleep during closing arguments. This was not evidence supporting that the jurors were actually asleep. There was no declaration from a juror that this behavior was observed and the trial court did not confirm it had observed any of the jurors sleeping. Additionally, the declaration did not state how long the jurors were purportedly asleep during the arguments. Defendant has not shown a manifest or unmistakable abuse of discretion by the trial court concluding that the alleged inattention by two of the jurors was insignificant and did not warrant further inquiry.
D. CUMULATIVE ERROR
Defendant claims that the combined effect of multiple errors rendered his trial fundamentally unfair. Reversal may be required when the cumulative effect of serious trial errors made at trial amounted to a miscarriage of justice. (See People v. Hill (1998) 17 Cal.4th 800, 844, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.) We have rejected each claimed error. We similarly conclude that their cumulative effect does not warrant reversal of the judgment. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
Defendant's petition for writ of habeas corpus (In re Ryan Lee Dodson, E069301) will be resolved by separate order or opinion. --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.