Opinion
E050287
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY THOMAS ORR, Defendant and Appellant.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. FVI700838)
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
When his truck was being repossessed, defendant Jeffrey Thomas Orr threatened the repossessor with a gun. A jury convicted defendant of assault with a firearm, including an enhancement for personally using a firearm. (§§ 245, subd. (a)(2), 12022.5, subds. (a) and (d).) The court sentenced defendant to probation.
After he was charged with being a felon in possession of a firearm, defendant admitted violating his probation. The court ordered probation revoked and sentenced defendant to a five-year prison term.
On appeal, defendant argues the trial court erred by refusing to instruct the jury on mistake of fact or defense of property. Substantial evidence did not support giving the subject instructions. We affirm the judgment.
II
FACTUAL BACKGROUND
A. Prosecution Evidence
An accounts representative for Pacific Community Credit Union testified about credit union procedures for vehicle loan payments. Defendant's payment history on a vehicle loan showed many charges for late payments, insufficient funds, and various fees. A credit union officer testified that defendant owed $28,354 in June 2006. Additional fees and charges of $557.90 were due in September 2006. In September 2006, defendant had paid $28,354, which was not enough to pay off the loan fully. In December 2006, defendant informed the credit union he would not pay the remaining balance. In April 2007, defendant offered to settle his loan with the credit union by paying 70 percent but the credit union refused his offer to compromise the debt. The balance due on April 26, 2007, was $1,697.90. The credit union initiated repossession because it appeared defendant was moving and leaving town.
Robert LeCrone is a state-licensed repossessor. On April 26, 2007, LeCrone was instructed to repossess defendant's Dodge white crew cab truck. At midnight, LeCrone and his helper, Jonathan DeVoto, went to defendant's residence and loaded the Dodge truck on to a tow truck. Then LeCrone knocked on defendant's front door and explained that he was a licensed repossesor but defendant still had the legal right to try to recover the vehicle after repossession. LeCrone offered to let defendant retrieve his personal property in exchange for returning the truck keys. During their conversation, defendant stated he had paid off the truck loan but admitted he still owed something.
Defendant surrendered the keys and began removing his possessions from the truck. Defendant asked, "Is there anything we can do to drop this truck?" Then he retrieved a gun from the center console and pulled back the slide. Defendant commanded, "You're going to drop my truck," pointing the gun at LeCrone.
While LeCrone tried to get into the driver's seat of the tow truck, he instructed DeVoto to call 911. Defendant pulled LeCrone out of the tow truck, pinned him against the door, and held the gun at his forehead, yelling to "drop" the Dodge truck. DeVoto called 911 and reported that defendant had brandished a gun and held it against LeCrone's head.
LeCrone tried to calm defendant because LeCrone was afraid the gun would discharge accidentally. At one point, defendant shifted the gun but then he put it against LeCrone's head again. The two men struggled over control of the tow truck until a patrol car arrived and LeCrone broke free from defendant.
When the deputy sheriffs arrived, defendant left the tow truck, got in the Dodge truck, and drove it off the tow boom. The tow truck was damaged in the amount of $3,000 and rendered inoperable.
A deputy ordered defendant to get on the ground. Defendant complied and threw a knife away. The deputy handcuffed defendant who said the gun was not loaded. An unloaded gun and a loaded magazine were found in the Dodge truck. A second loaded magazine was found on the ground in a location where defendant had been walking.
B. Defense Evidence
Alissa Mendoza was defendant's girlfriend for seven years and lived with him. Mendoza testified that, after LeCrone knocked on the door loudly at midnight, defendant gave him the keys for the Dodge truck. Mendoza followed defendant outside and saw him holding a gun at his side and asking LeCrone to release the truck. Mendoza did not see defendant brandish the gun at LeCrone or DeVoto. Mendoza watched defendant trying to operate the tow truck. When the deputies arrived, defendant drove the Dodge truck off the tow boom.
Defendant testified that he had refinanced his house and asked the credit union three times to give him the payoff amount on the Dodge truck. He was always informed it was $28,354. He believed the truck loan had been paid in September 2006. When LeCrone came to the door, defendant told him there was a mistake because the truck had been paid off although defendant was disputing some fees and still had not obtained the title.
Defendant gave LeCrone the keys so he could be allowed to retrieve his personal property. Defendant approached the Dodge truck on the driver's side and asked LeCrone if he could remove the stereo system he had installed.
Defendant had attended classes in gun safety and he knew how to charge a gun. When he removed the pistol from the Dodge truck, he ejected the magazine and left it in the truck. He pocketed the pistol and discussed the mistake with LeCrone while DeVoto called 911.
When LeCrone came close to defendant, defendant took out the gun and held it by his side. Defendant admitted he was angry and yelling but he never pointed the gun at LeCrone or touched him with it.
In cross-examination defendant acknowledged having an ongoing dispute for 10 months with the credit union and that the credit union had not released the truck's title to him. He was upset about the repossession because, earlier that day, he had offered to settle the dispute for 70 percent of the amount owing but the credit union had refused his offer.
Defendant disputed the fact that LeCrone had ever been in the cab of the tow truck or that defendant had pulled him out. Defendant tried to work the levers of the tow truck to release the Dodge truck. He did not try to drive away in the tow truck. When he drove the Dodge truck off the tow boom using a spare set of keys, he tossed the gun on the floor of the truck.
III
INSTRUCTIONAL ERROR
Defendant argues that the trial court erred when it refused to give instructions on mistake of fact (CALCRIM No. 3406) and defense of property (CALCRIM No. 3476) because defendant mistakenly believed he had paid his vehicle loan in full and the credit union was acting unlawfully in having the Dodge truck repossessed. He also claims he used only the force he believed was necessary. These arguments cannot succeed based on the contrary evidence that defendant admitted he did not have title and that he was having an ongoing dispute with the credit union about the remaining debt. Under these circumstances, defendant could not reasonably believe that his truck was being stolen and he could not reasonably believe he had the right to defend his property with force.
A defense instruction must be supported by substantial evidence and must be consistent with defendant's theory of the case. (People v, Maury (2003) 30 Cal.4th 342, 424.) Defendant proposed giving an instruction based on CALCRIM No. 3406, stating: "The defendant is not guilty of [assault with a firearm] if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or mistakenly believed a fact.
"If the defendant's conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit assault with a firearm.
"If you find that the defendant believed[] that he owned the truck and it was being taken or stolen from him, and you find that belief was reasonable, he did not have the specific intent or mental state required for assault with a firearm.
"If you have a reasonable [doubt] whether the defendant had the specific intent or mental state required for [assault with a firearm] you must find him not guilty of assault with a firearm."
Defendant's proposed instruction based on CALCRIM No. 3476 stated: "The owner or possessor of personal property may use reasonable force to protect that property from imminent harm.
"Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.
"When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable to protect property from imminent harm. If the People have not met this burden, you must find the defendant not guilty of assault with a firearm."
A reasonable mistake of fact may be a defense to the general intent crime of assault with a deadly weapon. A mistake of fact has a subjective and an objective component. (People v. Williams (1992) 4 Cal.4th 354, 360-361.) Defendant cannot rely on People v. Scott (1983) 146 Cal.App.3d 823, which is factually and legally distinguishable as discussed in respondent's brief, because it involved a specific intent crime, based on unusual facts, and it did not involve instructional error.
Instead, defendant in the present case was not reasonably mistaken. He testified that he had been arguing with the credit union for months about whether he still owed money on the truck. He spoke to the credit union the day the truck was repossessed. When the repossessor came to his door, defendant handed over his keys, which he was under no compulsion to do. He admitted he did not have title to the truck. Defendant knew LeCrone and DeVoto were not stealing his truck but were acting under the direction of the credit union. Defendant could not plausibly claim he acted under a reasonable mistake of fact.
Defendant also could not assert the defense of the right to defend personal property because a reasonable person in his situation could not have believed it was necessary to use a gun against a licensed repossessor to protect the Dodge truck from imminent harm. A similar defense, based on claim of right (CALCRIM No. 1883 [Defense to Theft or Robbery: Claim of Right]), is disfavored by the law where it involves a disputed claim and "force, violence, or weapons." (People v. Barnett (1998) 17 Cal.4th 1044, 1143-1144.) Based on the circumstances of this case, a reasonable person should have allowed the repossession to proceed and subsequently taken legal steps to recover the vehicle rather than resorting to violent self-help measures. Substantial evidence did not support giving an instruction on defense of property.
IV
DISPOSITION
Defendant could not reasonably believe his truck was being stolen. The trial court did not err in refusing to give instructions on mistake of fact or defense of property. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
s/Ramirez
P.J.
King
J.