Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA057299, Antonio Barreto, Jr., Judge.
Charles R. Khoury, Jr., 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, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
A jury convicted defendant William Lee Mitchell of second degree commercial burglary (Pen. Code, § 459) and grand theft of personal property (§ 487, subd. (a)). It found true one prior strike allegation (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and five prior prison term allegations (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of nine years in state prison. He appeals from the judgment of conviction. We affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
Bonnie Naruo worked as the office manager at Foogert’s Tire and Auto Service located on Sepulveda Boulevard in Culver City. Sometime around 8:00 a.m. on August 2, 2005, she saw defendant on the sidewalk outside the shop. Defendant waved and said “Hi.” Shortly thereafter, Michael Nani, a mechanic at Foogert’s who was arriving at work, saw defendant coming out of one of the service bays in the rear of the repair shop carrying what appeared to be a large suitcase and another object.
Nani confronted defendant on Sepulveda Boulevard and asked, “Where are you going with those items?” Defendant replied that he did not know what items Nani was talking about. Nani called his attention to the items he was carrying and asked, “Where did you get those from?” Defendant asked if Nani was accusing him of stealing. Nani said that he had seen defendant come out of the back of the shop, that the items looked familiar to him as shop property, and that he wanted to see inside the items. Defendant denied taking anything from the shop.
Bonnie Naruo and Steven Hernandez, another employee, emerged from the shop. Hernandez definitely recognized the tool set defendant held as one Hernandez frequently used. The larger case looked like one that held a diagnostic scanner used at the shop.
Nani shouted to Naruo and Hernandez to call the police. They replied that the police were on their way. Defendant, still carrying the items, then voluntarily accompanied Nani back to the shop. A customer, Walter Lesley, saw defendant and Nani enter and walk to the counter area. Defendant was carrying what appeared to be two tool kits or boxes.
Defendant refused Nani’s request to open the items, claiming that the items belonged to him. At some point, however, they were opened. Inside the large case was a snap-on diagnostic scanner that Nani and Hernandez recognized as belonging to Foogert’s. Inside the tool box was a sticker that Nani, Hernandez and Naruo recognized as being on the tool set when used by Foogert’s technicians.
Defendant again claimed that the items belonged to him. When told that the police would be called, defendant said, “If you’re going to do that, I’ll just leave.” Bonnie Naruo called the police, and defendant walked out of the shop, leaving the items on the counter.
Culver City Police officers detained defendant on Sepulveda Boulevard. After defendant was placed in the back seat of a patrol car, one of the officers, Albert Casillas, asked if he knew why he was being detained. Defendant said, “I didn’t take anything. Nobody saw me come out of that place, and I didn’t take anything.” He also said that he tools he left were his, and that he would return and prove it.
Michael Inscore, the owner of Foogert’s, testified that the shop had purchased the scanner in 1997 or 1998. The model was no longer in production, and he had received an estimate that it would cost approximately $2,495 to replace it with used equipment. Inscore acquired the tool set when he purchased a truck in 2000 or 2001, and the set was under the seat of the truck. Inscore had never seen defendant before, and had no record of his ever having had his car serviced.
Defendant, who represented himself at trial, presented no evidence.
DISCUSSION
1. Claim of Right
Defendant contends that his out-of-court statements supported the giving of a claim of right instruction, and that the trial court erred in failing to give such an instruction. We disagree.
“‘It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. [Citations.] A belief that the property taken belongs to the taker [citations], or that he had a right to retake goods sold [citation] is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. [Citation.]’ [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1143; see People v. Tufunga (1999) 21 Cal.4th 935, 943.) The trial court must instruct on claim of right only if the defense is supported by substantial evidence. (People v. Creath (1995) 31 Cal.App.4th 312, 319.)
Here, defendant’s out-of-court statements to Foogert’s employees and the police that he owned the diagnostic scanner and tool box did not constitute substantial evidence to support a claim of right instruction. To constitute substantial evidence in this context, the evidence must be such that a reasonable jury could find not simply that defendant claimed he owned the property, but that he took the items because he believed in good faith that he owned them. (See People v. Romo (1990) 220 Cal.App.3d 514, 517.) On the record here, however, no reasonable jury could have made such a finding.
In his out-of-court statements, defendant did not admit taking the items from Foogert’s. He claimed, rather, that they belonged to him and that he did not take them. Thus, his statements did not fit under a theory of claim of right, i.e., a claim that he took the items because they belonged to him.
Moreover, the following evidence was undisputed: defendant did not work at Foogert’s; Foogert’s purchased the scanner in 1997 or 1998; Inscore received the tool box when he purchased a truck in 2000 or 2001; and since their acquisition the scanner and tool box remained at Foogert’s and were used by technicians there. To the extent defendant claimed in out-of-court-statements to Foogert’s employees and later to the police, when confronted with the theft, that the items were his, he did not explain why he held that belief. At trial he presented no evidence to suggest any basis -- even an unreasonable basis – showing how he could possibly have believed in good faith that he owned the scanner and tool box.
Similarly, in his argument to the jury, defendant did not argue that he took the items because he believed they were his. He argued, rather, that they were his and that the evidence was insufficient to prove that he took them. Thus, the overall theme was that no one had seen him enter Foogert’s and that, therefore, he was not guilty: “Nobody ever said anything about seeing me even enter. So maybe there’s a little bit of magic to where I can just pop up on the inside and specifically go look for an auto computer scanner and a set of tools.”
In his argument, defendant mentioned his claim of ownership only in support of his claim that he did not take the items from Foogert’s. He stated, in relevant part: “Nobody never seen me walk up into Foogert’s. Nobody ever did. We had the 911 caller [Bonnie Naruo] who states that technically she never saw me with any merchandise, that she only saw Michael [Nani] and Steven Hernandez with it when they walked back up in there. If they walked me back up in there, first of all, why would I be claiming something I don’t even possess as far as a receipt? I wouldn’t speak about a receipt. . . . If I was to claim something that was mine standing on Culver Boulevard and Sepulveda Boulevard, why would I claim it and be so naïve and turn and walk back into their business, but it’s supposed to be mine? If you have something, and you know it’s yours, you wouldn’t take one step in anyone’s direction in favor of them, especially to try to go prove something.”
On this record, defendant’s claim that he owned the items, without explanation of the basis of the claim and without a concession that he took the items from Foogert’s, is insufficient to as a matter of law to support an instruction on claim of right.
Even assuming that the failure to instruct on claim of right was error, the error was not prejudicial under either the test of Chapman v. California (1967) 386 U.S. 18, 24, or the test of People v. Watson (1956) 46 Cal.2d 818, 836. The evidence of defendant’s guilt of theft and burglary was overwhelming, and the evidence of claim of right insubstantial. Beyond a reasonable doubt, any error in failing to instruct on claim of right did not contribute to the verdict (Chapman, supra); likewise, it is not reasonably probable that in the absence of the error a different verdict would have been reached (Watson, supra).
2. Judge’s Failure to Inform of Right to Bifurcation
Defendant did not request a bifurcated trial on his prior strike conviction of first degree burglary and on his five prior prison terms (one for burglary, one for forgery, and three for taking a vehicle without permission (Veh. Code, § 10851, subd. (a)). Thus, evidence of these priors was presented to the jury as part of his trial on the charges of burglary and grand theft in the instant case. On appeal, defendant argues that because the trial court at times gave defendant advice on other aspects of the case, the trial court had a duty to advise him of his right to request a bifurcated trial on the prior strike and prison terms. We disagree. “[A] defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance, and cannot compel the trial court to make up for counsel’s absence.” (People v. Barnum (2003) 29 Cal.4th 1210, 1226 [trial court has no duty to advise self-represented defendant of privilege against self incrimination before testifying].)
3. Flight Instruction
Defendant contends that the trial court erred in instructing on flight pursuant to CALJIC No. 2.52. That instruction informed the jury in relevant part that a person’s “flight or attempted flight . . . immediately . . . after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” The evidence adequately supported the instruction. It is true that defendant accompanied Michael Nani back to Foogert’s. However, later, when told that the police would be called, he said, (according to Michael Hernandez), “If you’re going to do that, I’ll just leave.” Bonnie Naruo called the police, and defendant walked out of the shop, leaving the items on the counter. The jury was entitled to infer from this evidence that defendant, being unsuccessful in attempting to bluff Foogert’s employees into simply letting him keep the stolen items, left the scene before the police arrived because he knew he was guilty and did not wish to be arrested. The trial court did not err in giving CALJIC No. 2.52.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.