Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM0014, Thomas DeSantos, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
Defendant Clifford Ross Sadler was convicted of one count of grand theft based on the taking of multiple beehives belonging to another. He admitted that he served a prior prison term. He appeals, claiming the prosecutor committed misconduct during closing argument by erroneously describing the claim-of-right defense. As part of this argument, he asserts his counsel was ineffective in failing to object to the prosecutorial misconduct. We affirm.
Facts
Commercial beekeepers own beehives (hives), which are also referred to as colonies. Each hive consists of two bee boxes. Beekeepers move their bees from location to location. Some bees are moved to pollinate crops; others are used to produce honey. When the hives are placed for honey making, it is common practice for property owners to allow beekeepers to place their hives on property in exchange for honey or cash. When hives are placed for pollination, the farmers pay the beekeepers for this service. Beekeepers service their hives about once a week.
Bryan Beekman is a commercial beekeeper. Beekman found a location where he wanted to place his hives. He went to the home on the property and asked if he could place his hives there. He came in contact with the renter of the home, Mark Barrios. Barrios told him he would talk to the owner of the property and get back to him. Barrios called Beekman and told him it was okay for him to place his hives on the property.
Beekman marked most of his hives and boxes with his name. Most of the hives also had his brand on them, which was registered with the local agriculture commissioner, and some of the hives had Beekman’s telephone number and contact information.
For two or three consecutive years Beekman placed his hives on the property behind the home Barrios rented. Beekman normally took the bees to this property in July and moved them in September or October. Having had no problems in previous years, Beekman took 128 hives to the property in July of 2007. The hives had a value of approximately $180 to $200 each.
Gregorio Luna became the caretaker of the property where Beekman’s 128 hives were located. While the sheriff was at the property for another reason, Luna asked him about getting rid of the hives as Luna did not want them on the property because he could not go to the property without getting stung. The landowner had not given Beekman permission to place the hives on the property. The sheriff told him he should try to locate the owner; if he could not find the owner, then he could give the hives away.
In October of 2007, Luna offered the hives to Ricardo Barba. Barba called beekeeper Nathan Miguel and told him he knew someone who wanted hives off of his property. Miguel went and looked at the hives. The bees were in fair shape and any beekeeper would know that the hives were not abandoned. He found Beekman’s telephone number on the hives from a distance of 10 feet away. He told Luna not to move the hives and to call the agriculture commissioner.
Miguel called Beekman to tell him his hives were in danger. Beekman checked on his hives and they seemed to be fine. Beekman did not think his hives were in danger because, if they were, the landowner would contact him. In addition, Beekman thought Miguel might be trying to acquire his bee location by telling him that his hives were in danger.
Beekman checked on his hives two times after Miguel called him. In the meantime, Luna contacted defendant and asked him to remove the hives. Defendant went to the property with Luna and said he wanted the hives. Luna thought the hives were abandoned. Defendant moved the hives to a truck driven by someone else, and the hives were transported away from the property.
On Beekman’s third visit to the property after receiving the telephone call from Miguel, all of his hives were gone. Beekman called the sheriff’s department but received very little assistance. Beekman went to defendant’s house and asked him if he had his (Beekman’s) hives. Defendant told Beekman he did not know where the hives were and he had nothing to do with them. Defendant told Beekman he was asked to move the hives. He went out and looked at the hives and recognized them to be strong, but he did not have time to deal with moving the hives.
After reporting his missing hives to the sheriff’s department on two occasions, Beekman decided he would have to find the hives himself. Beekman followed an employee of defendant to a location and discovered 28 of his hives in a nearby location. Beekman’s name had been painted over on the boxes and defendant’s name had been stenciled on the boxes. Beekman left and later returned to the property where he had seen the 28 hives. When he returned, the hives were gone.
In the meantime, defendant went to the sheriff’s department asking if he had the right to remove the hives. Based on defendant’s version of the circumstances, he was told he could move the hives. The deputy told defendant that if he found out who the hives belonged to he would have to give them back, but he could probably be compensated for his time. Defendant also contacted an attorney seeking advice about the legality of moving the hives.
The hives were located the week of Thanksgiving 2007 and returned to Beekman.
Defendant testified on his own behalf. He claimed he had a legal right to take the hives.
Discussion
“‘Although an intent to steal may ordinarily be inferred when one person takes the property of another... proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. 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. [Citation.] 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.’” (People v. Barnett (1998) 17 Cal.4th 1044, 1143.)
“A defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. [Citation.] A defendant need not show his mistaken claim-of-right was reasonable. An unreasonable belief that he had a legal right to take another’s property will suffice so long as he can establish his claim was made in good faith.” (People v. Romo (1990) 220 Cal.App.3d 514, 518.)
The jury was instructed on the claim-of-right defense as follows: “If the defendant obtained property under a claim of right, he did not have the intent required for the crime of theft. The defendant obtained property under a claim of right if he believed in good faith that he had a right to the specific property or a specific amount of money and he openly took it.
“In deciding whether the defendant believed that he had a right to the property and whether he held that belief in good faith, consider all the facts known to him at the time he 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 the 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 defendant attempted [to conceal] the taking at the time it occurred or after the taking was discovered.”
Defendant contends the prosecutor’s argument to the jury was misleading because the prosecutor urged the jury to reject defendant’s claim of right based on the fact that his conduct was unreasonable. It is argued that this was misleading because an unreasonable belief in the legal right to take another’s property is sufficient to establish the defense if the belief is held in good faith. Defendant acknowledges that defense counsel did not object to any of the portions of the argument he singles out now as misleading, but he argues in the alternative that his counsel was ineffective in not objecting.
During argument the prosecutor said that the defense is going to claim that defendant had an innocent intent because he thought he could have the hives. “Well, it’s not innocent because it was unreasonable in the way in which he acted. He didn’t do one thing to verify that these bees could be moved.”
The prosecutor went on and pointed to the claim-of-right instruction, arguing that there was no good faith. “Defendant’s conduct was completely unreasonable, and it has to be based upon all the facts. Not just some of them that the defendant wants you to believe, but all the facts. The totality of the circumstances.”
Defense counsel argued that defendant had established a claim of right to the hives. In his closing argument the prosecutor argued that Miguel demonstrated the standard of reasonableness for a beekeeper. “And the defendant... when you stand back, everything that the defendant thinks has to be reasonable for you to cut him [loose], basically. It has to be reasonable. Well, it was not reasonable and we know that because we have the standard of an independent person in the business for six years who walks up to these bees, find[s] the identifying information and handles business in that fashion.”
The prosecutor continued in his argument, comparing the actions of defendant to Miguel and disputing that the mistake-of-fact defense applied. “Well, it has to be reasonable, and everything that he did in this case, it was unreasonable.” The prosecutor continued, “It’s every honest person’s job to find out who owns something you’re getting ready to take. So his mistake of fact has to be reasonable, and in this case it’s completely unreasonable.”
As previously set forth, defendant contends this recurring theme of the prosecutor’s argument was misleading. Defense counsel did not object to any portion of the prosecutor’s argument. The “failure to object and request an admonition [forfeits] a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective.” (People v. Arias (1996) 13 Cal.4th 92, 159.) Defendant has forfeited his claims of misleading argument because his counsel failed to object and request an admonition. He has not shown that an objection would have been futile or an admonition ineffective.
Moreover, we conclude that any claimed misleading comments by the prosecutor did not prejudice defendant. Although on occasion the prosecutor stated defendant’s mistake of fact had to be reasonable, the prosecutor also stated more than once that defendant’s mistake of fact had to be completely unreasonable. The jury was specifically instructed that “if the defendant was aware of facts that made the belief completely unreasonable, you may conclude that the belief was not held in good faith.” “‘Failure to object rarely constitutes constitutionally ineffective legal representation.’” (People v. Gray (2005) 37 Cal.4th 168, 207.) Defendant’s “ineffective assistance of counsel claim must be rejected because he has failed to demonstrate a reasonable probability the outcome of his trial would have been different absent” the claimed error. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1010.)
Disposition
The judgment is affirmed.