Opinion
NOT TO BE PUBLISHED
Super. Ct. No. RIF117693
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING
Gaut, J.
Appellant’s petition for rehearing filed December 10, 2008, is denied. The opinion filed in this matter on November 24, 2008, is modified as follows:
1. On page 3, the third full paragraph is replaced with the following:
“The People agree count 3 is a lesser included offense of count 2 and therefore the conviction must be stricken. Accordingly, we reverse defendants’ convictions for grand theft of a firearm (count 3). We also conclude, only as to Gonzalez, that the trial court erred in failing to instruct the jury sua sponte on the claim-of-right defense and this constituted prejudicial error as to count 3, but not as to any of the other counts. As to the remainder of defendants’ contentions, we conclude there was no prejudicial error, individually or cumulatively. We therefore affirm defendants’ judgments as to all counts, with the exception of count 3.”
2. On pages 35 through 38, section 6 is replaced with the following new section 6:
6. Claim-of-Right Instruction
Although defendants’ count 3 conviction must be stricken because it is a lesser included offense of count 2, robbery, we nevertheless address defendants’ claim-of-right contention because defendants argue it not only requires reversal of count 3, but also counts 1 and 2, which defendants argue are premised on the conviction for theft of the gun.
Defendants filed supplemental appellate briefs arguing that the trial court failed to instruct sua sponte on their claim-of-right defense to the theft of the gun and robbery charges relating to the Eatmon incident (counts 2 and 3). Defendants claim there was substantial evidence supporting their claim-of-right defense. Lopez testified he believed he was retrieving his gun from Eatmon, who borrowed it from him for several months. In addition, several witnesses testified that immediately upon defendants’ arrival at Eatmon’s home, Lopez demanded the return of his gun, indicating he believed he owned the gun.
Also, the prosecutor acknowledged during closing argument that the jury might “have some questions as to whether it was really Rachel’s gun, . . .” as opposed to Lopez’s gun. The prosecutor went on to argue that Eatmon did not borrow the gun; she purchased it from Lopez. The prosecutor further stated that “even if you believe that the gun somehow was Mr. Lopez’, you still have a robbery, because he took $20, and he took the marijuana from the safe. That’s property that clearly was not his.”
We agree there was sufficient evidence to support a claim-of-right defense instruction, but Lopez was not entitled to assert the defense under the “notorious illegal transaction doctrine,” which provides that “[t]he claim-of-right defense is inapplicable to claims based on notoriously illegal activities.” (People v. Hendricks (1988) 44 Cal.3d 635, 642 [prostitution]; see also People v. Gates (1987) 43 Cal.3d 1168, 1181-1182 [forgery].)
A. Applicable Law
Gonzalez and Lopez’s theory of the case was that, when Lopez demanded Eatmon hand over the gun, Lopez believed Eatmon had previously borrowed the gun from him and, since it belonged to Lopez, Lopez was entitled to take it back.
A mistake-of-fact or claim-of-right defense to theft may be established based on a defendant’s good faith belief the property in question is not stolen, regardless of whether the belief is reasonable. (People v. Tufunga (1999) 21 Cal.4th 935, 943, 954, fn. 5 (Tufunga); People v. Romo (1990) 220 Cal.App.3d 514, 518-519 (Romo); People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) In other words, the defendant must have an actual belief he has a bona fide right to the property. (Romo, supra, 220 Cal.App.3d at p. 518.)
Instruction on the claim-of-right defense is not required “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.” (Romo, supra, 220 Cal.App.3d at p. 519.) But, “[a]s 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. [Citation.] A fortiori one cannot have such a belief when he actually knows the transaction on which the ‘right’ is based is illegal.” (People v. Gates (1987) 43 Cal.3d 1168, 1182.)
“Whether or not a given set of facts provides the necessary support for drawing a particular inference is a question of law.” (Romo, supra, 220 Cal.App.3d at p. 1182.) In evaluating the evidence to determine whether an instruction should be given, the trial court should not measure its substantiality by weighing the credibility of witnesses. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) It is not necessary for the trial court to give an instruction if the supporting evidence is minimal and insubstantial. (Ibid.) “Doubts as to the sufficiency of the evidence should be resolved in the accused’s favor.” (Ibid.)
B. Discussion
The People argue that the claim-of-right instruction was not required because Lopez’s claimed right to the gun was rooted in a “notoriously illegal” transaction. (People v. Hendricks (1988) 44 Cal.3d 635, 642; People v. Gates, supra, 43 Cal.3d at pp. 1181-1182.) It was illegal for Lopez, as a convicted felon, to possess a firearm under section 12021, subdivision (a)(1).
We agree the notorious illegal transaction doctrine applies as to Lopez, but does not as to Gonzalez. As to Lopez, his asserted right to the gun was rooted in a transaction that was notoriously illegal and known to be such by Lopez. It was unlawful for Lopez, as a felon, to possess a gun and Lopez testified he was aware of this. Even if Lopez owned the gun and lent it to Eatmon, Lopez engaged in an illegal activity by initially possessing the gun and then by taking it back, since it was unlawful for Lopez, as a felon, to possess the gun under section 12021, subdivision (a)(1).
Gonzalez, on the other hand, was entitled to instruction on the claim-of-right defense because there was evidence he was led to believe the gun belonged to Lopez and Gonzalez was assisting Lopez in retrieving the gun. There was no evidence that Gonzalez was aware it was unlawful for Lopez, as a convicted felon, to possess the gun.
In Tufunga, supra, 21 Cal.4th at pages 938-939, the California Supreme Court discussed the viability of a claim-of-right defense in a robbery case as follows: “In light of the strong public policy considerations disfavoring self-help through force or violence, including the forcible recapture of property, we granted review in this case to consider whether claim of right should continue to be recognized as a defense to robbery in California. Since [People v. Butler (1967) 65 Cal.2d 569] was decided over 30 years ago, courts around the nation have severely restricted, and in some cases eliminated altogether, the availability of the defense in prosecutions for robbery. As will be explained, however, the ‘felonious taking’ required for robbery under section 211, as well as that for theft under section 484, is a taking accomplished with felonious intent, that is, the intent to steal, a state of mind that California courts for over 150 years have recognized as inconsistent with a good faith belief that the specific property taken is one’s own. When our Legislature incorporated this mental state element into the definition of robbery upon codifying the offense in 1872, it effectively recognized claim of right as a defense to that crime. This court is therefore not free to expand the statutorily defined mens rea of robbery by eliminating claim of right as a defense altogether on policy grounds. [Citation.]”
Our high court in Tufunga further stated that “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.” (Tufunga, supra, 21 Cal.4th at p. 938.)
Under Tufunga, we conclude that, as to Gonzalez, the trial court was required to instruct on the claim-of-right defense because there was evidence Gonzalez believed Lopez owned the gun in Eatmon’s possession, and Gonzalez was assisting Lopez in getting it back. The notorious illegal transaction doctrine did not apply to Gonzalez because there was no evidence that Gonzalez knew it was illegal for Lopez to possess the gun under section 12021, subdivision (a)(1).
By not instructing on the claim-of-right defense, the trial court removed from consideration of the jury a material issue raised by substantial evidence thereby, precluding a finding that Gonzalez lacked the intent to take or assist in taking another’s property. (People v. Butler (1967) 65 Cal.2d 569, 574 (Butler), overruled on another point by Tufunga, supra, 21 Cal.4th at p. 939.)
Such error is subject to a harmless error analysis under Chapman. In applying Chapman, we cannot say that beyond a reasonable doubt the failure to instruct on the claim-of-right defense did not contribute to Gonzalez’s count 3 conviction for grand theft of a firearm. (People v. Roybal (1998) 19 Cal.4th 481, 520; People v. Flood (1998) 18 Cal.4th 470, 504-507.) Even applying the Watson harmless error standard, reversal is required. (Tufunga, supra, 21 Cal.4th at p. 957.) Therefore Gonzalez’s count 3 conviction must be reversed.
Although count 3 must be reversed as to Gonzalez for failing to instruct on the claim-of-right defense, reversal of counts 1 and 2 (attempted murder and robbery) is not required. This is because there was substantial evidence, apart from the taking of the gun, supporting defendants’ convictions for counts 1 and 2. There was overwhelming evidence that Lopez committed robbery by taking money and marijuana from Eatmon’s safe. There was also substantial evidence that defendants intended not only to take the gun from Eatmon but also intended to take her money. The attempted murder offense was a natural and probable consequence of the robbery. In addition, there was substantial evidence that Gonzalez aided and abetted Lopez in committing both offenses. The failure to instruct on the claim-of-right defense requires reversal, as to Gonzalez but not Lopez, and only as to count 3, grand theft of a firearm.
Except for these modifications, the opinion remains unchanged. These modifications do not effect a change in the judgment.
We concur: Hollenhorst, Acting P.J., Richli, J.