Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR465702
Margulies, J.
Defendant Andrew Michael Musaelian was convicted by jury of two counts of violating Vehicle Code section 10851 and two counts of forgery (Pen. Code, § 470, subds. (c), (d).) The court dismissed two counts of grand theft (Pen. Code, § 487, subd. (d)(1)) after the jury was unable to reach a verdict on these counts. The court suspended imposition of sentence and placed defendant on three years of probation.
Defendant contends he received ineffective assistance of counsel because defense counsel (1) failed to object to the admission of evidence of defendant’s threats and other intimidating behavior and to prosecutorial misconduct in closing argument, and (2) elicited inadmissible evidence concerning defendant’s mental health from a prosecution witness. Defendant also argues the court committed prejudicial error by failing to give an instruction on the claim-of-right defense and that, if the error was invited, counsel rendered ineffective assistance by withdrawing the claim-of-right instruction. Finally, he asserts a probation condition that he take all medication prescribed by his doctor or psychiatrist must be stricken.
We hold that counsel rendered effective assistance, and that any error with respect to the failure to give an instruction on the claim-of-right defense was harmless. Since the Attorney General concedes error with respect to the probation condition, we order it stricken, but, in all other respects, affirm the judgment.
I. FACTS
A. Heskett Vehicle
Defendant became the assignee of a debt incurred by Timothy Heskett after the creditor, Santa Rosa Paint Center, obtained a default judgment against Heskett for $17,582.52. Heskett owned a Dodge pickup truck that he had financed through WFS Financial. The truck had a lien on the title.
On April 15, 2004, defendant obtained a writ of execution seeking $19,054.72, including interest accrued on the judgment, from the Sonoma County Superior Court. That month he called Deputy Sheriff William Conner, who was assigned to the Sheriff’s Department Civil Bureau (Bureau). Conner was familiar with defendant, who came in frequently to file papers to be served. Conner assumed defendant was an investigator or process server. Defendant stated he had a levy for a vehicle, he knew where the vehicle was, and he wanted the sheriff’s office to levy on it. Conner explained it could take two to three weeks to get all the papers prepared and for the sheriff to perform the levy. Defendant was not happy to learn this. Defendant asked whether he personally could go and take the car. Conner informed him that he could not. Conner specifically told defendant that only the sheriff’s department can perform an automobile levy. Conner warned defendant, “[W]hatever action he was going to take, he better do it within the law . . . [and] the paper would have to come to us for review and preparation for service.”
On April 19, 2004, defendant took the writ of execution and paperwork for a vehicle levy on Heskett’s vehicle to the Sonoma County Sheriff’s Department. Natalie Getsinger reviewed the paperwork and determined it was in order, but when she informed defendant there was a $1,000 fee, defendant complained about the amount and said Conner had told him there was a different procedure. He further stated he had been told that the sheriff’s department does not even handle vehicle levies. Getsinger assured defendant the sheriff’s department does handle vehicle levies, and referred him to the applicable section of the Code of Civil Procedure. Defendant filed the writ, but decided not to open the vehicle levy.
Later, defendant returned to the sheriff’s office and opened two bank levies, a wage garnishment, and a vehicle levy against Heskett, and provided a check for the fee. On May 12, 2004, defendant withdrew the vehicle levy paperwork and the Bureau returned his check for the vehicle levy fee. The next day the manager of the Bureau, Elizabeth Warren, wrote defendant a letter confirming her telephone conversation with him earlier that day in which she had explained that defendant had improperly listed himself on the writ of execution as both the assignee of record and the process server, because the process server could not be an interested party. In the meantime, the Bureau had been unable to perform the wage garnishment. With respect to the bank levies, the Bureau had to return the money it obtained from one account because of the defects in the paperwork, and the other account levied upon had no funds. On June 14, 2004, defendant asked the Bureau to return the writ of execution, which was still on file.
Warren testified that when defendant did business with the Bureau in 2004, he would sign his instructions with different titles, including as “a registered process server, as a private investigator, J.D.,” based upon his law degree.
On June 24, 2004, defendant and another man went to Heskett’s house and told Heskett they were there to repossess his truck. Defendant told Heskett he was collecting on the $20,000 judgment owed to the Santa Rosa Paint Center, and the other man handed legal papers to Heskett. Defendant told Heskett he was going to sell the truck to pay the judgment, but Heskett would still be liable for the balance. The two men helped Heskett remove his tools from the truck and Gold Towing Company towed the truck to its lot.
Heskett called the police and filed a report. In response to an inquiry, Warren informed the police department that there was no vehicle levy and that the sheriff had not taken Heskett’s vehicle.
Heskett also called the loan company that held the lien on the truck. Within five or six days, the loan company located the vehicle, and called Heskett to inform him he could retrieve it from Gold Towing Company.
Defendant spoke to Heskett over the phone several times in the following month or two. He told Heskett he would follow his wife to work and garnish her wages, and would follow him to every job and collect payment directly from customers. He repeatedly urged Heskett to “get this thing over with” by voluntarily executing a promissory note for $20,000 secured by his home.
B. Stringer Vehicle
Defendant also became the assignee of a debt incurred by Ann Stringer after the creditor, Golden Gate Printing, obtained a default judgment against her. In January 2003, Stringer called defendant because he had called Stringer’s mother and told her if Stringer did not call he would have her put in jail. Defendant told Stringer she owed money to Vespa Industries, which she later learned was another name for Golden Gate Printing, and he would have her arrested if she did not pay. He also gave Stringer some information about a court date. Stringer told defendant her attorney would contact him.
Defendant called her again in March 2003. He told her, “[Y]our time is up,” he was going to bring her papers that day, and she was going to go to jail. Stringer spent the day waiting for him, but he did not deliver any papers. A while later Officer Conner contacted her and informed her there was a judgment against her. She went to the Marin County courthouse and discovered the default judgment. She also learned she had missed several court dates and a bench warrant had issued. She hired a local attorney, who helped her get the bench warrant removed because she had not been served. While Stringer was in court for that purpose, defendant served her with an order of examination with a court date in July. In July, Stringer attended a court hearing at which defendant was also present. After the hearing, Stringer had a separate meeting with her attorney and a representative of Golden Gate Printing. Her understanding was that Golden Gate Printing agreed not to pursue collection of the default judgment.
In early November 2004, defendant served Stringer with another notice of a debtor examination. Stringer appeared with her attorney, and after a hearing she offered defendant $1,000 to settle the matter. Defendant said that for $5,000 he would go away for five years. He seemed “overconfident, kind of boastful” and “threatening.”
On November 18, 2004, defendant obtained a writ of execution from Marin County Superior Court based upon the money judgment Golden Gate Printing had obtained against Stringer. He listed himself as the “Assignee in Pro Per” and put “J.D.” after his name. As issued by the clerk, the box for writ of “Execution (Money Judgment)” had a computer-generated checkmark, but the two boxes for a writ of “Possession of” and “Personal Property” were not checked.
On November 23, 2004, defendant filed the writ of execution with the Bureau to open a bank levy. The writ had been altered to include a handwritten checkmark in the box for “personal property.” Defendant did not open a vehicle levy.
Sometime during the Thanksgiving weekend of 2004, defendant called Julieanne Magdowski, who owned two attorney support services in Santa Rosa. Her business consisted of process serving and aiding in collection of judgments. Defendant said he wanted to do a bank levy, he was going to tow a vehicle, and had the proper documentation to do it. She was not sure if he said he had a writ of possession. When he came into the office, she told him serving the bank levy was no problem, but a writ of possession had to be done through the sheriff, and she, as a process server, could not do it. Defendant said he just needed a licensed process server to witness the towing, and she again responded she was not authorized to do that, and the towing had to be done through the sheriff’s department. He replied that the sheriff’s department was very expensive, and “acted like he had everything already taken care of.” Magdowski thought it was peculiar that he was so aggressive about wanting her to be present to witness the towing. She could not recall whether the writ of execution form also had the box checked for a writ of possession and for personal property, but read the writ of execution and thought it was in order. She agreed to, and did, serve the bank levy for him. She did not make any handwritten addition to the forms.
Defendant then obtained the services of Gold Towing Company. He provided an employee with a copy of the writ of execution that also had a handwritten “X” in the box for “personal property.” Sometime after 9:00 p.m. on November 26, 2004, defendant supervised the towing of Stringer’s car. He called the Santa Rosa Police Department, and after being transferred several times, informed them he was a “repo person” and reported the towing of Stringer’s vehicle as a “repossession.”
The next morning Stringer discovered that her car was gone. She called the Santa Rosa Police Department to report it as stolen and was told that it had been repossessed, and towed by Gold Towing Company. At Stringer’s request, Gold Towing Company faxed her a copy of the writ defendant had provided to the employee who towed the vehicle. It had a handwritten “X” in the box for “Personal Property.” On Monday, November 29, 2004, Stringer filed a police report. She had a previously scheduled court date with defendant on December 1. During the hearing, defendant asserted that the sheriff did not perform vehicle levies, and that the process server hand-wrote the “X” next to the box for personal property. That same day, at the courthouse, while defendant was following Stringer up some stairs, he asked her how her dog, Baxter, was doing. She interpreted this as a threat because she had never told him about the dog or its name. A few weeks later, Stringer recovered her vehicle.
Elizabeth Warren, the manager of the Bureau, testified that when she received a call from Stringer’s attorney asking if the sheriff had seized Stringer’s vehicle, she looked at the file and determined that only a bank levy was open. She was concerned when she looked at the writ because in the boxes next to the words “writ of” there was not only a check mark next to “execution money judgment” but also a handwritten “X” in the “personal property” box, yet no mark in the box for a writ of possession. A valid writ for possession of personal property should have both boxes checked. She determined that in processing the bank levy, her staff had erred by focusing on the writ of execution mark and ignoring the personal property check mark.
Warren also testified as an expert on the differences between a writ of execution and a writ of possession. If her office receives a writ of execution on a money judgment, the sheriff will seize the property, sell it and apply the proceeds to the judgment. In the case of a writ of possession, the sheriff would meet the creditor or the creditor’s agent at the scene where the property is located and hand it over directly to the creditor, without conducting a sale. There are two different types of judgments. A writ of execution is based upon a money judgment. A writ of possession must be based upon a judgment for possession of real or personal property. If a vehicle levy is performed pursuant to a writ of execution, the debtor will receive notice and a list of exemptions and any lien holder will also receive notice. She testified that a registered process server is not authorized to perform a vehicle levy or a writ of possession of personal property, but they are authorized to do a writ of possession for real property. The assignee of record could give instructions to the sheriff with respect to both a writ of execution and a writ of possession for personal property, but only the sheriff could perform a levy.
Tony Klein, a registered process server who also runs a school for process servers, testified as an expert. He testified that in a writ of execution the sheriff is the levying officer and, absent a specific order from a judge, there is no situation in which a process server can take personal property. He also testified that only a court clerk can amend a writ of execution. Once a writ is issued, checking a box or changing it in any way would invalidate the writ.
Defendant presented his own expert, Paul Jamond, who specializes in bankruptcy law. He testified that money judgments are not self-enforcing, and to enforce them it is necessary to obtain a writ of execution. The debtor also has the right to exempt certain property, including equity in a vehicle if its value is less than $2,300. He explained that a registered process server may levy under a writ of execution on certain kinds of property, but that the Code of Civil Procedure sections can be confusing. According to Jamond, although the code sections list the many types of property on which a registered process server may levy, they are not as clear in designating the types of property on which a registered process server may not levy. He also testified that a treatise on enforcement of judgments states that completion of the form for a writ of execution based upon a money judgment is technical, and the box for personal property should not be checked, but that people do make this mistake.
II. ANALYSIS
A. Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance by (1) failing to object or move to strike testimony from Timothy Heskett and Ann Stringer regarding defendant’s intimidating statements and behavior, and failing to object when the prosecutor committed misconduct by “testifying” that defendant made threats, and arguing to the jury that defendant was a “bully”; and (2) eliciting irrelevant and damaging testimony concerning defendant’s mental health history in the cross-examination of Ann Stringer.
To establish ineffective assistance of counsel, defendant must show counsel’s representation fell below an objective standard of reasonable professional competence, and a reasonable probability exists that, in the absence of defense counsel’s act or omission, the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Waidla (2000) 22 Cal.4th 690, 718.)
1. Failure to Object to Testimony and Argument Regarding Threats
Without objection from defense counsel, the prosecutor asked Timothy Heskett whether defendant made “any sort of threats towards you.” Heskett responded that approximately a month after defendant towed Heskett’s vehicle, defendant called and said he would follow Heskett’s wife to work and garnish her wages. He would also follow Heskett from paint job to paint job and collect money directly from Heskett’s customers. In that same call, and in many subsequent calls, defendant urged Heskett to sign a note for $20,000 secured by his house “to get this thing over with.”
The prosecutor also asked Stringer what defendant said in his first telephone call to her. Stringer testified that defendant told her if she did not pay he would have her arrested, and described how he got off the phone for a second and then came back on “talking about somebody hitting something.” When the prosecutor asked Stringer to describe defendant’s demeanor during this conversation, she responded that it was “threatening” and “kind of crazy. It just wasn’t logical, what he was saying or how he was saying it.” When asked about defendant’s demeanor in a subsequent meeting outside a courtroom, she replied it was “[t]hreatening,” and described his offer to go away for five years if she gave him $5,000 as “almost like . . . he owned me. He was going to get this no matter what it took.” The prosecutor asked whether defendant made any threats in a second court meeting. Stringer replied, “Not directly, but at one point we were walking up the stairs, and he was behind me, and he asked me how my dog Baxter was doing, and I took that to be a threat, because I never told him my dog’s name, and it just—the dog’s my baby.” Later the prosecutor asked if there were “any other factors or moments . . . that contributed to your feeling of being threatened by this defendant.” Stringer could not recall any other specific statement, but described defendant’s manner as arrogant and dismissive. Defense counsel did not object to any of the foregoing.
Defendant argues that defense counsel rendered ineffective assistance by not interposing timely objections because the foregoing evidence of threats and intimidating behavior should have been excluded on the following grounds: (1) The evidence was irrelevant because force or fear was not an element of any of the offenses; (2) It was “speculative” and called for a legal conclusion that defendant’s words or conduct constituted threats, as opposed to simply informing the debtors that he would be vigilant in the pursuit of collection of a legally adjudicated debt; and (3) even if relevant, it was more prejudicial than probative under Evidence Code section 352.
It is not below the standard of reasonable competence to fail to make an objection that is not meritorious. “Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.’ ” (People v. Majors (1998) 18 Cal.4th 385, 403.) Moreover, even when there is a basis for objection, the decision whether to “ ‘ “object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.” [Citation.] “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” [Citations.]’ [Citation.]” (Ibid.) Defendant’s counsel did not render ineffective assistance by failing to object to admission of this testimony, because it was either not objectionable on the grounds defendant proposes, or it is not reasonably probable that the proposed objection would have been sustained.
An objection that the evidence of threats and intimidating behavior was irrelevant was without merit, and would have been futile. The primary defense theory was defendant did not have the specific intent to commit the crimes with which he was charged, and defendantu mistakenly, but in good faith, believed he had the legal right to seize the victims’ vehicles to collect the debts they owed him. One of the specific arguments defense counsel made to the jury was defendant misunderstood the law and had no reason to take the vehicles unless he believed in good faith he could lawfully do so. According to defense counsel, defendant would have nothing to gain by taking the vehicles and having to return them once the victims discovered they were missing. The prosecutor rebutted this defense theory by arguing defendant knew he was acting “above the law,” and consciously disregarded all information he received to the contrary from Conner, Getsinger and Magdowski. Defendant hoped that by taking the vehicles he would get the attention of the victims, and even if the vehicles were eventually returned, the unpleasant experience would aid his ongoing effort to pressure them into settling their debts. These arguments illustrate the relevance of the evidence of defendant’s statements and conduct that the victims perceived as threatening to show intent, lack of mistake, and lack of good faith. Counsel therefore was not incompetent for failing to object that the evidence was irrelevant, and if such an objection had been made the court would certainly have overruled it.
Defense counsel did object when the prosecutor asked whether Stringer still felt fearful of defendant, and Stringer responded that she was and she never knew whether he or somebody he hired was going to “be there.” Whether the victim was still in fear of the defendant was arguably irrelevant on the issue of his intent at the time he took her vehicle. The court sustained the objection and struck Stringer’s response. The court also sustained two more objections to the same line of questioning eliciting reference to other court cases Stinger had read about, and struck her response.
An objection to evidence of threats and intimidating behavior, on the ground it was “speculative,” would also have been overruled. Defendant focuses primarily upon Stringer’s testimony that defendant made a veiled threat concerning her dog. Defendant argues that Stringer’s testimony interpreting defendant’s statement as an implied threat was objectionable because it was “completely speculative.” To the contrary, defendant was not Stringer’s personal friend and it therefore was unusual that he would ask her about her dog. In the circumstances, defendant’s comment was sufficiently susceptible to the interpretation that it was an implied threat to be relevant and admissible to show intent, and a lack of a good faith belief that he was acting lawfully to collect the debt owed to him. As the percipient witness, Stringer was not “speculating” when she testified regarding the comment defendant made to her, the circumstances in which the comment was made and how she perceived it. It was ultimately for the jury to decide, as a matter of fact, whether the comment was intended to convey a veiled threat. (See People v. Hovarter (2008) 44 Cal.4th 983, 1010 [not unduly speculative for percipient witness to testify that defendant stated he knew what he was doing, and to testify concerning her impression as to his meaning, leaving the jury to make the ultimate determination whether this comment was an admission that defendant had previously committed the same crime].) For the same reasons, Heskett’s testimony on the subject of statements defendant made to him that he perceived to be threats also was not subject to the objection that it was “speculation.”
Nor were the prosecutor’s questions on the subject of threats or intimidating behavior objectionable on the ground that the prosecutor testified, or conveyed to the jury, a personal opinion or legal conclusion that defendant’s statements were threats. Defendant asserts that because the word “threat” has a specific legal definition when a defendant is charged with the offense of making criminal threats under Penal Code section 422, the prosecutor’s repeated questions using the word “threats” assumed or suggested the legal conclusion that defendant’s statements and behavior constituted criminal threats. Merely using the word “ threat” in a question does not convert the question into testimony. In any event, failure to object on these grounds could not have resulted in any prejudice, because the jury was instructed that questions and argument are not evidence, and it is presumed that the jury understood and followed instructions. (See People v. Mooc (2001) 26 Cal.4th 1216, 1234.) Moreover, defendant was not charged with making a criminal threat. Therefore, that legal definition was neither assumed nor implied by the prosecutor’s question, nor was it even at issue. What was in issue was defendant’s specific intent when he took the vehicles and altered the writ, and whether he believed in good faith that he could lawfully seize the vehicles. In that context, the prosecutor’s questions about threats or intimidating behavior did not ask the witness to draw a legal conclusion, but rather to testify as to their personal observations and perceptions of defendant’s statements and conduct. It was for the jury to determine, based upon the witnesses’ responses and the other evidence, whether defendant was making threats or merely asserting his right to lawfully collect the debt owed to him.
Defendant’s assertion that, even if the evidence of threats or intimidating behavior were relevant and admissible, defense counsel should at least have sought to exclude it pursuant to Evidence Code section 352, also fails to demonstrate defense counsel was ineffective, because it is not reasonably likely that the court would have sustained such an objection. Apart from repeating the arguments we have already rejected that the evidence was speculative and irrelevant, defendant does not clearly define the nature of any prejudice other than to state this evidence portrayed him as a “hostile” and “reprehensible” person. The evidence of threats and intimidating behavior was relevant circumstantial evidence on the issue of intent, to show lack of mistake and lack of good faith. His mental state was the central disputed issue because defendant did not deny taking the vehicles. In light of its strong probative value on the issue of intent, and the absence of significant and clearly defined prejudice, it is not reasonably likely that, even if counsel had made an objection based upon Evidence Code section 352, the court would have excluded it.
In a variation of some of the preceding arguments, defendant also asserts the prosecutor committed misconduct by arguing that defendant was a “bully,” and “wanted to threaten these people, take their cars, and hold them hostage and get money from what he thought were these weaker individuals.” He contends defense counsel rendered ineffective assistance by failing to object that this argument was improper testimony or expression of the prosecutor’s personal opinion, or an attempt to inflame the jury with an irrelevant attack on defendant’s personal character.
Defense counsel did not render ineffective assistance for failing to object, because the prosecutor’s argument did not constitute misconduct. It is misconduct for a prosecutor to refer to facts not in evidence, or imply “there was additional evidence . . . known to [the prosecutor] but unavailable to the jury. These implications tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination.” (People v. Bolton (1979) 23 Cal.3d 208, 213.) The assertion that defendant was a “bully” was not a reference to outside evidence, or to the prosecutor’s personal opinion. It was a reasonable inference that could be drawn from evidence that after taking Heskett’s vehicle, defendant followed up by telling Heskett he would follow him and take money directly from his customers by pressuring Heskett to give defendant a note secured by a lien on his house to “get this thing over with.” The jury also heard evidence that defendant told Stringer that if she did not pay he would have her arrested, and made further statements that could be construed as impliedly threatening her dog. It was entirely proper to argue that defendant was making threats, because one of the central issues in the case was whether the defendant acted lawfully, or believed he was acting lawfully. No doubt the foregoing evidence was subject to conflicting inferences, but the prosecutor may properly argue any reasonable inferences from the evidence. (Id. at p. 212 [“Closing argument presents a legitimate opportunity to ‘argue all reasonable inferences from evidence in the record’ ”].)
Nor was this argument objectionable on the ground that it was an attempt to inflame the jury by mounting an irrelevant attack on defendant’s character. The prosecutor made the argument in direct rebuttal to the defense argument that the jury should find defendant believed in good faith he could lawfully take the victims’ vehicles, because, if he did not believe he could lawfully do so, it would not have made sense for him to take the vehicles knowing they would be have to be returned to the owners, resulting in his being out of pocket for the cost of towing and storage. Defense counsel concluded defendant would have had nothing to gain from taking the vehicle, unless he believed he could do so lawfully. In rebuttal, the prosecutor pointed out that defendant could have had something to gain if he thought taking the vehicles would get the attention of the debtors and motivate them to settle their debt to avoid more threats and bullying. This argument was not an attack on defendant’s character, but rather was properly directed to the critical issue of defendant’s intent.
2. Eliciting Testimony Concerning Defendant’s Mental Health
Finally, defendant contends counsel rendered ineffective assistance by eliciting damaging testimony during his cross-examination of Stringer that she believed defendant was suffering from mental illness.
During the direct examination of Stringer, defense counsel objected when the prosecutor asked whether Stringer could give any examples of reasons why she continued to be fearful of defendant, and Stringer responded that she had “read other court cases he’s been involved in.” The court sustained the objection and instructed the jury to disregard the answer. Counsel asked the court to hold a hearing outside the presence of the jury, and stated his concern that if he did not address her testimony the jury would be left with the impression that “there are records of other criminal prosecutions” of defendant, but that if he tried to address it he would open the door to her testifying about “various things that the D.A. has said.” The court initially noted that it had sustained the defense objection and told the jury to disregard her answer, but nevertheless agreed to allow defense counsel first to question Stringer about the bases for her reference to “other court cases” outside the presence of the jury.
The prosecution had moved for admission of several instances of uncharged conduct where defendant had overstepped legal bounds in attempts to collect judgments, including a civil case in which he had allegedly slammed a car door on the leg of a debtor’s son and tried to collect the debt from the son even after the court had told defendant the court had no jurisdiction over the son. This evidence was never admitted, and defense counsel may have been concerned that Stringer was referring to these records.
In this hearing Stringer testified that, after “Googling” defendant, she had reviewed a court file and saw a sealed envelope that she speculated contained medical records relating to defendant’s mental health. She also testified defendant had unusual mannerisms, and she “knew enough about the mentally ill that I should be a little afraid.” When defense counsel resumed cross-examination in front of the jury he asked her why she continued to be afraid of defendant and she repeated her concern was based in part upon his mannerisms and on “other things I’ve read and heard.” Defense counsel asked her whether she had drawn an assumption that he had a mental health problem from a court file, which she confirmed. Defense counsel also asked whether she had any basis for assuming the file contained medical records. She responded she could not recall, but the file might have been “marked medical records.”
Defendant asserts Stringer’s testimony referencing another court case, and her belief that the file indicated defendant had some mental health problems, was prejudicial, and defense counsel could not have had any valid rational tactical reason for eliciting this testimony. He asserts the only possible explanation for defense counsel’s line of questioning is that defense counsel was confused, and mistakenly believed the jury had already heard the testimony Stringer gave in the hearing held outside the jury’s presence.
There is, however, a strong presumption that counsel’s conduct falls within the range of reasonable competence, and we may “ ‘ “reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 437.) Our review of this record satisfies us that counsel did have a valid tactical reason for eliciting Stringer’s testimony: He wanted to preclude any speculation, however improper it might have been after the court struck Stringer’s reference to other court cases, that defendant was subject to other criminal prosecution, and wanted to undermine Stringer’s credibility by demonstrating she made unreasonable assumptions. Defense counsel informed the court, out of the presence of the jury, he was concerned that despite having been stricken, Stringer’s answer could leave the impression defendant had been subject to other criminal prosecution. After prudently first examining Stringer outside the presence of the jury to find out the basis for her statement, defense counsel exercised his reasonable tactical judgment that it was better to address the reference to other court cases and demonstrate that her stated reasons for fearing defendant were based upon not much more than speculation, than to avoid the subject and rely upon the jury to follow the instruction to disregard her testimony.
Stringer also had made several accusations about bdefendant’s harassing behavior, including that he impliedly threatened her dog. Her testimony could be interpreted either as evidence of harassment by defendant intent on collecting the debt by any means, or as a sign of her paranoia and willingness to make unsupported assumptions. By attempting to bring out on cross-examination how Stringer leaped to an assumption about the contents of the court file, and that defendant had mental health problems, defense counsel could bolster his argument that the jury should adopt the latter interpretation. Defense counsel did exactly that in closing argument, describing Stringer’s testimony about defendant’s threats as “fantastic” and based upon “textbook” paranoia. In support of this argument he specifically cited Stringer’s testimony that she believed defendant had mental health problems, and demonstrated how she had no factual basis for that belief. Since the record amply supports a plausible and reasonable tactical reason for eliciting this testimony, counsel was not ineffective for presenting it.
B. Failure to Instruct on Claim-of-right Defense
Defense counsel initially offered an instruction based upon CALCRIM No. 1863 explaining the claim-of-right defense. He also requested a special instruction on mistake of law. The prosecutor objected that the claim-of-right instruction did not apply to the facts, and argued that there was no substantial evidence to support a mistake-of-law instruction. The court stated it would give the mistake-of-law instruction. After ascertaining that defense counsel also wanted the claim-of-right instruction, the court asked: “Why is it not covered by the ignorance or mistake of law instruction that I’m going to give? Defense counsel replied: “I think the Court is right. I think it is covered, and I think I can argue it that way, and so I don’t want to confuse the jury with competing defenses on the same point, so I believe it would be best for me to withdraw that.”
The court gave the following special instruction on mistake of law: “Ignorance or mistake of law can negate the existence of a specific intent and is a defense to the charges alleged in Counts One, Two, Three and Four if the defendant honestly believed that he had the right to take the subject property. The evidence must support a reasonable inference that any such claimed belief was held in good faith.”
Defendant contends the court had a sua sponte duty also to give CALCRIM No. 1863 on the claim-of-right defense, and if defense counsel invited the error by withdrawing the requested instruction and relying instead on an instruction on mistake of law, that decision constituted ineffective assistance of counsel.
“If the defendant relies on a claim-of-right defense or if there is substantial evidence that supports the defense and the defense is not inconsistent with the defendant’s theory of the case, the trial court must instruct sua sponte on the defense.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1429 (Russell).) Defendant argues there was substantial evidence he had a good faith claim of right to the vehicles of both victims because, as the assignee of a money judgment entered against each of the victims, he was a creditor. He also had obtained a writ of execution and opened a vehicle levy with respect to Heskett’s vehicle, and, although he failed to follow the correct legal procedure for seizing a vehicle, in both cases he took the vehicle openly, even going so far as to call the police when towing Stringer’s vehicle to inform them the car was being repossessed. (See People v. Stewart (1976) 16 Cal.3d 133, 141 [a lack of concealment may be considered as circumstantial evidence of good faith and the absence of a felonious intent].)
We question, in the first instance, whether the foregoing evidence was sufficient to trigger a sua sponte duty to instruct on the claim-of-right defense, because in People v. Tufunga (1999) 21 Cal.4th 935, 938-939 (Tufunga), the Supreme Court, in the context of robbery, limited the claim-of-right defense to a perpetrator who takes specific personal property to which he in good faith believes he has a claim of ownership or title. The court further held that the defense is not available to a perpetrator who takes the property of another to satisfy or collect on a debt, whether “liquidated or unliquidated.” (Id. at pp. 938-939, overruling in part People v. Butler (1967) 65 Cal.2d 569 [holding claim-of-right defense applies to robberies, and extending the defense to takings perpetrated to satisfy or collect a debt].) There was no evidence, in this case, that defendant believed he held title to, or had any ownership interest in, either of the victims’ vehicles. Instead, the evidence was that the each of the victims owed defendant a debt, and that defendant may have believed he had a legal right to collect it by seizing vehicles he knew were not owned by him. Although the court’s rationale in Tufunga, supra, 21 Cal.4th 935 for disapproving, in the context of robbery, the extension of the claim-of-right defense to the collection of a debt, was based in part upon a policy argument “against self-help by force or fear” (id. at p. 955), the court also stated reasons that would apply equally to other theft-related offenses. Specifically, the court observed that the Legislature may have, in Penal Code section 511, created “a statutory claim-of-right defense to all theft-related charges” that precludes application to the taking or retention “of the property of another to offset or pay demands held against him.” (Tufunga, at pp. 952-953, fn. 4, italics omitted.) We, however, have found no published decision addressing the question whether the holding in Tufunga barring the application of the claim-of-right defense to debt collection applies equally to thefts that do not involve the use of force or fear. It is unnecessary, in this case, for us to resolve this question because we may affirm the judgment on the alternative ground that, assuming arguendo defendant presented substantial evidence to support a claim-of-right instruction, any error in failing to give it was harmless.
Despite the explicit holding in Tufunga that the claim-of-right defense does not apply to a perpetrator who takes the property of another to satisfy or collect on a debt, “whether liquidated or unliquidated” (Tufunga, supra, 21 Cal.4th at p. 938, italics added), CALCRIM No. 1863 specifies only that the claim-of-right defense does not apply “to offset claims against the property owner of an undetermined or disputed amount [italics added].”
Error consisting of failure to instruct on a claim-of-right defense is subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Russell, supra, 144 Cal.App.4th at p. 1431-1432.) “Appellate review under Watson ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ ” (Russell, at p. 1432.)
In Russell the court found prejudicial error when the trial court failed to instruct on either mistake of fact or claim of right because the evidence that the defendant believed a motorcycle was in fact abandoned, and that he held the belief in good faith, was “relatively strong.” (Russell, supra, 144 Cal.App.4th at p. 1433.) This evidence included the poor condition of the motorcycle, the fact that the defendant found it parked near some trash bins by a repair shop (id. at p. 1421), and the defendant’s testimony, corroborated by other witnesses, that he asked an employee of the shop if the motorcycle had been left for repair and had been told that it was not. Before the owner reported the vehicle stolen, the defendant also had been stopped for a traffic violation, and he told the citing officer he found the motorcycle and intended to register it in his name. The citing officer ran the vehicle identification number to confirm that the vehicle had not been reported stolen and, at the defendant’s request, gave defendant the name of the registered owner. Before he was arrested, the defendant made an attempt to find the registered owner in the hope he would sign the vehicle over. (Id. at pp. 1422-1423, 1433.) In light of the relative strength of the evidence that the defendant believed in good faith the motorcycle had been abandoned, the court concluded it was reasonably probable the result would have been different had the court instructed on mistake of fact and claim of right. (Id. at p. 1433.)
Unlike Russell, supra, 144 Cal.App.4th 1415, the evidence that defendant mistakenly believed he had a legal right to the victim’s vehicles was weak, and the evidence that even if he held such a belief he did not hold it in good faith was so strong it is not reasonably probable the result would have been any different had the court given the claim-of-right instruction.
As the assignee of the judgments against Heskett and Stringer, there is no question defendant was owed debts by the victims and he had the right to collect those debts by any lawful means. The general claims defendant as a creditor held against the victims did not, however, by themselves, create a legal right to any of their specific property, and the evidence that defendant actually believed he had “a right to the specific property” he took, i.e., the debtors’ vehicles, was very weak. There was no evidence that defendant held a lien, or had any other claim of title or ownership of the vehicles. The writs of execution he obtained were based upon money judgments, not judgments for possession of personal property, and defendant indicated some awareness of the difference by resorting to altering the writ of execution with respect to Stringer by checking the “personal property” box. The evidence that defendant initially opened a vehicle levy on Heskett’s truck also showed he was well aware the writs of execution alone did not entitle him to take personal property of the debtor. Moreover, before he towed Heskett’s vehicle, defendant had withdrawn the vehicle levy paperwork, recovered his check for the vehicle levy fee, and been informed by Elizabeth Warren that the writ of execution was invalid because he had improperly listed himself as both the assignee of record and the process server.
With respect to Stringer, defendant did not even try to open a vehicle levy, and instead, as the jury found, he committed forgery by marking the “X” on the writ next to personal property, demonstrating that he knew, without such alteration, neither the underlying money judgment nor the writ of execution entitled him to seize the victim’s vehicles. Indeed, other than arguing defendant was generally confused about the procedure for debt collection, defense counsel was unable to specifically identify what legal claim defendant thought he had to the vehicles he took or on what procedure defendant was mistakenly relying.
Moreover, even if, despite the weakness of the evidence, a jury might have inferred that defendant somehow mistakenly believed that as an assignee of the judgment he had a legal right personally to seize the debtor’s vehicles, the evidence that he did not hold this belief in good faith was overwhelming: Three different individuals had informed defendant unequivocally that only the sheriff’s department could seize the vehicles of the judgment debtor: Before he towed either of the victims’ vehicles, defendant had asked Deputy Sheriff Conner if he could seize a vehicle himself. Deputy Sheriff Conner specifically told defendant only the sheriff’s department can perform an automobile levy. Then again, upon learning of the fee for a vehicle levy, defendant questioned whether the sheriff’s department handled vehicle levies and Natalie Getsinger assured him the sheriff’s department does handle vehicle levies, referring him to the applicable section of the Code of Civil Procedure. Finally, when defendant, despite the clear information he had already received that this was not a lawful procedure, tried to enlist Magdowski to assist in his plan to tow Stringer’s vehicle, Magdowski told him that a writ of possession had to be done through the sheriff, and that she, as a process server, could not do it. In response to information regarding the correct procedure, defendant complained the fee was too high, or the process was too slow. With respect to Stringer’s vehicle, the jury found he resorted to using forged documents in arranging for it to be towed. In order to find defendant guilty of the forgery counts, the jury had to find intent to defraud, which was defined as the intention “to deceive another person either to cause a loss of money, or to cause damage to, a legal, financial, or property right.” (CALCRIM No. 1905.) By convicting him on the forgery counts the jury necessarily found he had such intent, which would be incompatible with a finding that he believed in good faith he had a right to Stringer’s vehicle. The foregoing evidence overwhelmingly supports an inference defendant deliberately chose to persist in the belief he could somehow engage in self-help, despite being fully aware of the contrary information. Even if a defendant actually believes he acted lawfully, if “he was aware of contrary facts which rendered such a belief wholly unreasonable” the belief is not held in good faith. (People v. Vineburg (1981) 125 Cal.App.3d 127, 137.)
The absence of a reasonable probability that the result would have been any more favorable to defendant had the claim-of-right instruction been given is further illustrated by the fact that the court gave the instruction on mistake of law, which substantially overlapped the instruction on claim of right, and the jury nevertheless found defendant guilty on the two counts of violating Vehicle Code section 10851. (Cf. Russell, supra, 144 Cal.App.4th at pp. 1432-1433 [court prejudicially erred when relatively strong evidence supported both a mistake-of-fact and a claim-of-right defense and the court instructed on neither].) Both instructions inform the jury it cannot find a defendant had the specific intent required for theft-related counts if he held a good faith belief that he had a right to the property he took. The mistake-of-law instruction informed the jury a mistake of law could negate specific intent if “the defendant honestly believed that he had the right to take the subject property. The evidence must support a reasonable inference that any such claimed belief was held in good faith.” CALCRIM No. 1863 would have informed the jury that the defendant did not have the requisite specific intent if he “obtained the property under a claim of right,” which requires a belief “in good faith that (he/she) had a right to the specific property . . . and (he/she) openly took it.” (CALCRIM No. 1863.)
Defendant nevertheless argues giving the CALCRIM No. 1863 claim-of-right instruction might have produced a more favorable result because the mistake-of-law instruction the court gave described the good faith belief in terms of a “right to take” the property (italics added), whereas he construes CALCRIM No. 1863 to require only a good faith belief that he “had a right to the specific property” (italics added). Defendant acknowledges the evidence that he had a good faith belief in a right “to take” the vehicle by resorting to self-help, instead of going through the sheriff’s office to perform a vehicle levy, was relatively weak, but reasons that under CALCRIM No. 1863, he would only have had to persuade the jury that he believed he had a “right to” the property. He argues the evidence in support of a finding that he had a “right to” the victims’ property was much stronger because he, as the assignee of judgments against both victims, was indisputably a creditor, and so in that general sense he had a “right” to their property, even if it was less clear he believed in good faith that he had a right to use self-help to take it. The distinction defendant attempts to draw is based upon a misinterpretation of CALCRIM No. 1863. Although CALCRIM No. 1863 does not use the phrase “right to take” that appears in the special instruction the court gave on mistake of law, CALCRIM No. 1863 also defines the claim of right in terms of taking because it requires the jury to find the defendant “obtained property under a claim of right.”
For all of the foregoing reasons, we are not persuaded that it is reasonably probable the result would have been any more favorable to defendant had the court also given CALCRIM No. 1863.
Our conclusion that any error in failing to give CALCRIM No. 1863 was harmless is also dispositive of the contention that counsel rendered ineffective assistance by withdrawing the request and inviting the error.
C. Probation Condition
Finally, defendant contends the court erred by imposing, as a condition of probation, that defendant “take any medication that is prescribed by your doctor or your psychiatrist.” The Attorney General concedes that the condition should be stricken because the record does not support any connection between his criminal conduct and failure to use psychotropic medication. (See People v. Lent (1975) 15 Cal.3d 481, 486.)
III. CONCLUSION
The probation term requiring defendant to take all prescribed medications is stricken, and in all other respects, the judgment is affirmed.
We concur:Marchiano, P.J.,Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.