Opinion
C079791
05-05-2017
THE PEOPLE, Plaintiff and Respondent, v. AMANDA RACHELLE MILLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F06354)
Defendant Amanda Rachelle Miller contends the trial court violated her right to due process by erroneously instructing the jury regarding her claim-of-right defense to a robbery charge. Disagreeing, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 11:00 p.m. on August 24, 2014, C.W. and her friend D.P. went to a pharmacy to make a purchase. Behind them in line were defendant and Afra Aldakak, defendant's girlfriend of two years, who were silently staring at them. D.P. gave C.W. money for the purchase, left the pharmacy, and sat in the front passenger seat of C.W.'s car. When C.W. got the counter, she took $380 out of her bra, pulled her identification out of her wallet, and counted the money. Upon completing the transaction, she put her money and identification into her wallet and left the store.
Defendant and Aldakak also left the pharmacy. Defendant approached C.W., and the two began yelling, with defendant demanding "give me my [stuff]." C.W. said she did not have it and tried to get in the car, but defendant pushed the door shut. Defendant and Aldakak unsuccessfully tried to push C.W. into the backseat of their car, which was parked next to C.W.'s. They then grabbed C.W.'s wallet and left. C.W.'s wallet contained the cash and both D.P. and C.W.'s identification.
Sergio Alcala, an employee of the pharmacy, testified at trial that he was outside the store emptying the garbage and saw the women arguing. He asked if everything was okay, but defendant told him to mind his own business. He testified defendant slapped C.W. and Aldakak attempted to push C.W. into defendant's car. Defendant then took C.W.'s wallet.
In September 2014, the police located the vehicle driven by Aldakak and defendant the night of the robbery. The car was owned by Rosa Oquenda, defendant's cousin, who directed officers to an apartment where defendant and Aldakak were staying. The police searched their bedroom and found clothing matching the clothing worn by the robbery suspects, D.P. and C.W.'s identification, and a wallet matching the description of C.W.'s stolen wallet. In separate police photo lineups, D.P. and Alcala identified Aldakak, and C.W. identified Aldakak and defendant.
At trial, defendant testified she, Aldakak, and Oquenda went to the pharmacy at about 11:00 p.m. the night of the robbery to go shopping. Defendant saw C.W. in line and recognized her from a previous encounter. Defendant testified she wanted to purchase drugs and thought C.W. would know where to get them. Defendant and Aldakak exited the store and defendant stood by their car, which was parked next to C.W.'s car. When C.W. exited the pharmacy, defendant approached and asked if she knew where to get "crystal." C.W. replied she could get a quarter ounce from her boyfriend for $120. Defendant gave C.W. $120, and C.W. put the money in her wallet and said he would arrive "in a minute." C.W. started getting in her car and defendant asked her where the drugs were. C.W. replied she didn't have them yet. Defendant felt something was wrong so she asked for her money back.
Defendant testified that Alcala then came out of the store and asked the women if they needed help. Defendant told him to mind his own business. Defendant turned around and saw C.W. walking away, so she tried to grab C.W.'s wallet. The two engaged in a "tug-of-war" with the wallet, and defendant eventually got it. Defendant then drove home. Defendant testified the wallet contained her $120, plus an additional $80 and identification cards. Defendant spent the $80 and used the identification cards to purchase alcohol.
During cross-examination, defendant testified that, while in custody she had written letters to Aldakak. After defendant had seen the police reports and witness statements, she wrote to Aldakak: "I don't want you to say nothing. I have an angle that I'm going to run by my lawyer," and then described the story that the robbery was an unsuccessful drug deal. In the alternative, defendant would "go[] with postpartum depression." In addition to her letters, defendant was impeached with two crimes of moral turpitude -- a felony in 2007 and a misdemeanor in 2006.
At trial, D.P. and C.W. were impeached with evidence that they had recently engaged in prostitution. C.W. also testified she had driven a vehicle when a passenger discharged a gun three times in October 2014. In addition, in 2009 she admitted bringing marijuana into a state prison.
Defendant was charged with second degree robbery (count one; Pen. Code, § 211) and receiving stolen property (count two; § 496, subd. (a)), but count two was dismissed prior to trial. It was also alleged defendant had a prior serious felony conviction and a prior strike. (§§ 667, subds. (a)-(i), 1170.12.) Only the robbery charge was before the jury.
Further undesignated statutory references are to the Penal Code.
Aldakak was also charged a codefendant, but she is not a party to the instant appeal.
The trial court instructed the jury as to any asserted claim of right with CALCRIM No. 1863 as follows: "If the defendant obtained property under a claim of right, she did not have the intent required for the crime of theft or robbery. [¶] The defendant obtained property under a claim of right if she believed in good faith that she had the right to the specific property or the specific amount of money and she openly took it. [¶] In deciding whether the defendant believed that she had a right to the property and whether she held that belief in good faith, consider all the facts known to her at the time she 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 facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] The claim of right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal. [¶] And if you have a reasonable doubt about whether the defendant had the intent required for theft or robbery, you must find her not guilty of theft or robbery." (CALCRIM No. 1863, italics added.)
Defense counsel unsuccessfully objected to the inclusion of the italicized portion of CALCRIM No. 1863 as quoted above, which appears in the pattern as bracketed (optional) language.
The jury found defendant guilty of second degree robbery (§ 211), and she subsequently admitted the prior strike and serious felony conviction. The trial court denied defendant's motion for a new trial based on the giving of the challenged language, reasoning the instruction "correctly told the jury that the claim of right defense did not apply if it arose from an illegal activity." The trial court sentenced defendant to state prison for 11 years, as follows: three years for the robbery conviction, doubled to six years due to the prior strike, plus five years for the prior serious felony.
DISCUSSION
Defendant contends the trial court erroneously included the optional language as described above, arguing that there was no evidence to support a conclusion that defendant's claim of right arose from an illegal activity. As such, claims defendant, the instruction was argumentative and lightened the prosecution's burden of proof. We disagree.
"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 (Tufunga); People v. Lain (1943) 57 Cal.App.2d 123, 130 [felonious intent element negated "when the owner takes his own specific property from the possession of another"].) The claim-of-right defense is limited to "robberies in which the defendant sought to recover specific property for which he believed in good faith he had a bona fide claim of ownership or title." (Tufunga, at pp. 953-954, fn. 5.) The claim of right defense is unavailable, "when the purported right is based on an illegal endeavor." (People v. Johnson (1991) 233 Cal.App.3d 425, 457 (Johnson); see also Tufunga, at p. 953. fn. 5.)
Here, defendant testified she gave the victim $120 for illegal drugs. She then needed to recover the money after the drugs were not delivered as promised. She argues that her alleged "claim of right did not arise from an illegal transaction because there was no evidence that an illegal transaction took place," adding that this fact obviates any public policy reason for prohibiting her from raising the defense at trial. She protests that the $120 was hers to give and remained hers to recover, absent any evidence of an actual drug transaction, arguing that to "determine whether a claim of right 'arose from an activity commonly known to be illegal' one must ask whether, but for the illegal transaction, the defendant's right to the property would exist."
Although we do not disagree with this last point, here the sole reason the victim possessed the disputed $120 in the first instance was because defendant had taken the initial (and essential) step in an illegal drug transaction of paying for the drugs. But for the ongoing illegal transaction, defendant's $120 would not have been with the victim, and defendant would have had no need to "claim" it by subsequently ripping the victim's wallet out of her hands. As the optional language of the instruction makes clear, the defense "does not apply if the claim arose from an activity commonly known to be illegal." Here, the claim arose from the ongoing bargain to buy illegal drugs.
Although defendant attempts to distinguish Johnson, that case is comparable to defendant's situation, although not identical. Johnson gave $1,000 to Powers to buy drugs that Johnson planned to sell. (Johnson, supra, 233 Cal.App.3d at p. 450.) Powers purchased half the promised quantity and enlisted the help of Damron to acquire the rest. (Id. at pp. 450-451.) Damron subsequently stole the drugs and the remaining money from Powers. (Id. at p. 451.) When Johnson learned of the theft, he unsuccessfully tried to confront Damron and ended up shooting and killing Damron's companion. (Id. at pp. 451-452.) Johnson was convicted of felony murder, based on the attempted robbery. (Id. at p. 453.) The appellate court rejected his argument that the trial court erred in refusing to instruct the jury on the claim of right. (Id. at p. 457.) As the court explained, the "half-consummated" drug transaction was illegal when Johnson attempted to rob Damron; therefore the defense was unavailable to him. (Id. at p. 458.)
Although defendant disputes the application of Johnson to her case, as the drug transaction here was not as far along as it was when Johnson tried to get his money back, the situation is similar. Defendant's version of the incident was that she gave C.W. $120 to purchase drugs and then demanded the money back when C.W. tried to leave. She then wrestled with C.W. and took her wallet from her (which included not only the $120 she claimed to have given C.W., but other items as well, a fact we discuss briefly, post). The entire exchange was founded on bargaining for illegal drugs. As defendant points out, "[t]he courts have no interest in enforcing illegal bargains." We find no error in the trial court's decision to give the disputed portion of the instruction; thus we do not address defendant's connected claim that the bracketed language was argumentative and lightened the burden of proof. These arguments assume error in the giving of the bracketed language, and we have found no error.
We note that the claim of right defense is only available if the defendant "sought to recover specific property for which he believed in good faith he had a bona fide claim of ownership or title." (Tufunga, supra, 21 Cal.4th at pp. 953, fn. 5 & 954, italics added.) The evidence was uncontroverted that defendant took C.W.'s entire wallet, which contained the $120 from defendant, plus additional cash and C.W. and D.P.'s identification cards. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Robie, J.