Summary
comparing the case of a homeless man sentenced to 25 years to life under California's three-strikes law for stealing food from a church to Les Miserables
Summary of this case from U.S. v. EdwardsOpinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the Jan. 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Los Angeles County, No. BA153296, James R. Dunn, Judge. COUNSEL
Howard J. Specter, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Allison H. Ting and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS, J.
By jury, Gregory Taylor was convicted of second degree burglary. In bifurcated proceedings, the jury found that he had two "strikes" within the meaning of the "Three Strikes" law (Pen. Code, sections 667, subds. (b)-(i), 1170.12) and he had three prior felony convictions for which he served two separate prison terms (Pen. Code, section 667.5, subd. (b)). The court imposed a term of 25 years to life. He appealed following the entry of judgment and contends the court committed reversible error by failing to grant his request to instruct the jury as to mistake of fact.
Facts
At trial, Samuel Flores testified that he and another security guard, Lam, were employed to patrol a six-block area of the Los Angeles Fashion District. They made the same rounds on foot, or in a car, every hour or so. About 3 a.m., they had examined the kitchen door of St. Joseph's Church at close range with a flashlight. There was no damage to the door.
At 4 to 4:30 a.m., they came upon appellant in the alcove of the church door. For about two minutes from about fifty feet away, they watched him attempt to pry open the metal security screen over the church's kitchen door. Appellant was using a long, two-by-four-inch board as a lever. He also had inserted two smaller wooden pegs between the door and the doorjamb. The security guards walked up to him and detained him and he removed the long board and one peg from the door. Both the guards and the police officer responding to make the arrest described there was damage to the door under its doorknob—the door was pried up and sticking out about two inches.
Flores implied by his testimony that he was surprised appellant was able to open the door with a stick, especially since appellant had no metal object.
In Les Miserables, of course, Jean Valjean had stolen bread and been imprisoned for that crime many years before he appeared at the church. (His sentence for stealing bread was only five years, but he served nineteen because of punishment added for some failed escape attempts.) It was Bishop Myriel's silver dishes, not his food, Valjean took after accepting the clergyman's kind invitation to join him for dinner. When Valjean was caught, he escaped punishment only because the bishop told the police he had consented to Valjean having the silver dishes and then asked him to take the silver candlesticks as well. (Hugo, Les Miserables (Barnes and Noble ed. 1996) pp. 63-90.)
Later that morning, Father Raymond Tintle, the church pastor, observed there was damage to the kitchen security door. Father Tintle had seen the door two days earlier and there was no damage to the door then. Tintle indicated that food was kept in the church kitchen. If appellant had gained access to the kitchen, he would have had access to the rest of the church. There were various items inside the church, such as crucifixes, chalices, and alms boxes, all of which had value. Since appellant frequented the church, he would be aware these items were inside the church. Father Tintle was new to the church, having been pastor there for only 12 days.
After appellant's arrest, Los Angeles Police Officer Gerard Wittman interviewed appellant after a Miranda waiver. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].) Appellant told Wittman that he knew a priest at the church and he "was trying to go in the kitchen to get something to eat." Wittman asked if appellant had permission to enter the church. Appellant replied, "[N]o, he didn't have anybody's permission to enter."
Appellant did not testify in defense. Father Allan McCoy was Superior of the Friary at the church for 11 years. The door to the friary was near the kitchen door to the church. Father McCoy had known appellant about nine years. Father McCoy would frequently find appellant waiting for him as he left for work about 5:40 a.m. Appellant would ask the father for whatever he needed, usually transportation and sometimes food. The father would give appellant food unless he was in a rush. Then Father McCoy would give appellant food later in the morning. It was not unusual for appellant to be there early when he was extremely hungry. Father McCoy said the priests residing in the friary did not rise until at least 5:30 a.m., so there was no activity around the church until that hour.
There were times in the past when appellant was permitted to sleep on the church premises in the separate building housing the laundry. But for at least the last six months to a year, appellant was not permitted to sleep there. The former pastor did not want him, and perhaps others, there and appellant was aware of that.
The court instructed the jury as to burglary, a lesser offense of trespass (unauthorized entry of property), and as to the elements of these offenses, including that burglary required, an entry, the specific intent to "steal and take away someone else's property and the intent to deprive the owner permanently of property." The court also instructed the jury as to reasonable doubt.
Trial counsel requested the court give the jury the following instruction taken from People v. Navarro (1979) 99 Cal.App.3d Supp. 1 [160 Cal.Rptr. 692]: " 'If one takes personal property with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case, even if such good faith is unreasonable. [¶] The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe in order to convict the defendant of theft.' "
The prosecutor argued in the current case there was no evidence of mistake of fact or a claim of right.
Trial counsel argued the evidence the priests always gave food to transients was sufficient to warrant the inference appellant believed he was entitled to the food in the kitchen. Trial counsel also pointed out that the specific intent for burglary was negated if appellant believed he had permission to take the food in the kitchen.
In the alternative, trial counsel asked the court to give only the first paragraph of the proposed defense instruction.
The court refused the instruction. The court distinguished Navarro since it was a theft case and the Navarro defendant mistakenly believed the lumber in question there was abandoned or he had a claim of right to it. The court observed, in this case, appellant was burglarizing a church for food which was not abandoned. Appellant made no claim of right to the food—he simply had been given food in the past. The court also pointed out that the last paragraph of the instruction was confusing since appellant had the duty to produce evidence as to an affirmative defense.
In final argument, trial counsel argued that appellant did not "enter" the church door. Trial counsel claimed appellant was sleeping outside the door waiting for the priest and there was evidence the only way the metal door could have been pried open was with another metal object. No such object was found. Trial counsel also commented that there was no evidence appellant had the intent to steal at entry, which was required to prove burglary. Trial counsel argued, at best, appellant was guilty of trespassing.
Discussion
The contention the evidence supported the proposed instruction on mistake of fact or claim of right lacks merit. A trial court must give a requested instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration. (People v. Marshall (1997) 15 Cal.4th 1, 39 [61 Cal.Rptr.2d 84, 931 P.2d 262]; People v. Williams (1992) 4 Cal.4th 354,361 [14 Cal.Rptr.2d 441, 841 P.2d 961].) Here, the trial court correctly determined that the evidence did not support the instructions requested by the defense. Additionally, the trial court was not required to give modified instructions on mistake of fact or claim of right.
The instruction proposed in this case was the same proposed by the defense in People v. Navarro, supra, 99 Cal.App.3d Supp. 1. Navarro involved a defendant's claim he was innocent of grand theft. The Navarro defendant testified that he had a good faith belief the property alleged to be stolen was abandoned and he had the permission of the owner to take the property. In Navarro, the court reversed the conviction and required a new trial. The reason for the reversal was that the trial court modified the defense's proposed instructions and told the jury that the defendant had to have both a good faith and reasonable belief that the property was his before specific intent was negated. That court held all that was required for a claim of right defense was that the defendant have an honest, good faith belief that he had a legal claim to the property.
In reversing the conviction, the Navarro court explained there was long precedent for a claim-of-right defense. A claim-of-right defense requires a bona fide claim the property belongs to the accused. The claim must not be a mere cover for a felonious taking. The claim must involve an honest conviction and must be one of ownership of, or title to, the property. Where the defendant entertains such a belief in taking the property, his belief negates the specific intent required for larceny. (99 Cal.App.3d at p. Supp 6.) There is no requirement of reasonableness of the belief—where the specific intent to steal was in question, the issue was what the defendant actually knew and believed. (Id. at pp.Supp 7-8.) A defendant cannot be found guilty of larceny by negligence. An honest mistake of fact is a defense when it negates the required mental element of the crime. (Id. at p.Supp 10.)
Seizing upon the decision in Navarro, appellant claims the trial court here was required sua sponte to give a modified instruction on claim of right or mistake of fact which fit appellant's circumstances.
Appellant has not drafted a specific instruction which meets the requirements of law, but leaves that matter to the appellate court.
as follows: "Every person who enters any ... building ... with intent to commit grand or petit larceny or any felony is guilty of burglary...." (Pen. Code section 459, italics added.) The crime of burglary is defined in Penal Code section 459
Appellant's claim at trial was that specific intent was negated by the inference created by his statement to the police—that he believed he had consent to take the food in the kitchen. Appellant may have honestly believed that the priests had consented to his taking their food by their prior acts of charity. But such a good faith belief does not equate to an honest and good faith belief that he had consent to forcibly enter the church at night to get the food and damage the church door in the process. And he made no such claim in his statement to the police or at trial. In fact, appellant acknowledged in his postarrest statement to the police that he had no consent to enter. There is no precedent making lawful a forced entry into another's building to take food which will be freely given away the next day. On this record, the court was under no obligation to give a mistake-of-fact or claim-of-right instruction. (Pen. Code, section 26; cf. People v. Butler (1967) 65 Cal.2d 569, 573[55 Cal.Rptr. 511, 421 P.2d 703] [claim of right defense to robbery]; People v. Irizarry (1995) 37 Cal.App.4th 967, 975[44 Cal.Rptr.2d 88] [mistake of fact negating intent required for burglary].) Also, recently in People v. Barnett (1988) 17 Cal.4th 1044 [74 Cal.Rptr.2d 121, 954 P.2d 384], a case involving robbery, the California Supreme Court severely limited the scope of a claim-of-right defense as a matter of public policy. Barnett requires a liquidated and certain debt as a prerequisite to the use of the claim-of-right defense. (Id. at pp. 1144-1147.) And Barnett suggests that aclaim- of-right defense will not apply where a robbery defendant uses "force, violence or weapons... for self-help debt collection." (Id., at p. 1143.) This is akin to what appellant proposes to do here in the context of a burglary. We conclude that to permit appellant to use a mistake-of-fact or claim-of-right defense to negate the specific intent required for this burglary would also violate public policy.
Disposition
The judgment is affirmed.
Lillie, P. J., concurred.
DISSENTING:
JOHNSON, J.
I respectfully dissent.
In a scenario somewhat reminiscent of a late 20th century, real life Les Miserables, a hungry, homeless man is sent away for 25 years to life for trying to break into a church so he could eat some food he thought the church would be glad for him to have.1 Or at least that's the version of appellant's crime the trial court prevented him from taking to the jury by rejecting a "mistake of fact" (or claim of right) instruction. (The evidence in the record also supports two other possible scenarios—the defendant was trying to break in and steal the food he needed or to steal valuables from the church—both of which went to the jury. We have no way of knowing which of those versions the jurors accepted as true. We only know they had no opportunity to consider the legal consequences of the defendant's version.) In affirming, the majority opinion emphasizes appellant Gregory Taylor admits he was trying to enter the church without consent and argues therefore his claim of right to the food is irrelevant. (Maj. opn., ante, at p. 698.) True, this lack of consent is enough to establish trespass or unlawful entry. It is not sufficient in itself, however, to prove burglary. Burglary requires the defendant entered with an intent to commit larceny.2 Taylor does not concede he sought entry to steal anything, even food. Rather he introduced evidence in the form of his statements to the police and the testimony of the priest who formerly was in charge of the church suggesting he entertained a belief, quite possibly mistaken, the food he sought was earmarked for him and people like him. This is made all the more believable because of Taylor's long-term relationship with this particular church and its clergy and the frequency with which they had fed him. At the clergy's request he had even helped staff their food distribution events when they had handed out meals to Taylor and his fellow homeless citizens.
The "mistake of fact" defense, by definition, does not require the defendant's belief to be correct. So any evidence to the effect the church did not have food inside which it had set aside for Taylor or other homeless people would be irrelevant. Furthermore, this defense does not even require the defendant's belief to be reasonable. The sole question is the defendant's subjective although mistaken belief, reasonable or unreasonable, about the relevant state of facts—in this case whether the church had consented to his eating the food he sought inside the building. Under the "mistake of fact" defense, if the crime charged includes a specific intent element which would be negated by a defendant's mistake of fact about the true state of affairs, the defendant must be acquitted. It is irrelevant Taylor knew the church had not consented to his unlawful entry to obtain the food. This again only goes to prove a trespass or unlawful entry charge. What counts is his subjective belief—and not the church's—about the status of the food within.
People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 3 [160 Cal.Rptr. 692]. As explained by a leading authority on criminal law, "[t]he taking of the personal goods of another by trespass and carrying them away is not larceny in the absence of an intent to steal.... [T]he taker might in good faith believe he had received permission from the owner to take the chattel, and such a taking would not be larceny. Neither is it larceny if one takes away the chattel of another under a bona-fide claim of right, however mistaken he may be in this claim.... A mere pretense advanced in bad faith will not prevent conviction of larceny, but so long as the claim is genuine and sincere there is no larceny, even if it is quite ill-grounded." (Perkins on Criminal Law (3d ed. 1982) p. 326,some italics added, fns. omitted; see also 2 LaFave & Scott, Substantive Criminal Law (1986) section 8.5, pp. 358-359, and 3 Wharton's Criminal Law (15th ed. 1995) section 353, pp. 403-406.
In my view, as suggested above, sufficient evidence exists in this record to require the giving of a "mistake of fact" (or claim of right) instruction. If properly instructed, Taylor's own words were enough by themselves to allow a reasonable juror to doubt appellant had a specific intent to commit larceny while he was trying to break into the church. If any jurors believed Taylor, and they were entitled to, his intent in entering the church was to get some food he thought he had permission to eat. (In fact, if the jurors even had a reasonable doubt he could be telling the truth about his belief as to the true facts, that would be enough.) Any evidence the church in fact did not want him to have any of its food that night, and there was precious little of such evidence, would only go to the accuracy and reasonableness of Taylor's belief not to the genuineness of that belief. It certainly would be insufficient to render his own statement about his personal belief so incredible a juror could not reasonably believe him.
" 'The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft.' " (People v. Navarro, supra, 99 Cal.App.3d Supp. 1, 3, italics added.)
As it turned out, much of the evidence about the church's attitude, especially from Father Alan McCoy, only served to make Taylor's expressed belief more believable. For a long period of time the church was the closest thing Taylor had to a home because the priests frequently allowed him to sleep there at night. Before and after the time the church property supplied his sanctuary from the harsh realities of the street, the priests allowed him to eat the church's food, often inside the building. As mentioned above, they asked him to help them when the church served meals to other homeless people and Father McCoy befriended him to the extent of driving Taylor to visit his mother. Taylor's long-term and multifaceted relationship with this particular church facility and its clergy tended to reinforce the believability of his claim he had a subjective belief, albeit perhaps mistaken, that the church consented to his eating the food that lay within the building.
It is true no juror could have reasonably concluded Taylor believed he had a right to break into the church to get to the food. On the other hand, a juror could reasonably find Taylor lacked an intent to steal but instead held a mistaken belief he was merely claiming food the church had consented he could have. But the trial court denied jurors the opportunity to consider this defense to the "intent to steal" element of the burglary charge by refusing the requested "mistake of fact" instruction. To compound the problem and the prejudice, the prosecutor seized on this omission to argue it made no difference.
Referring to the jury's possible thought processes, the prosecutor argued: "Now you say, 'Well, Okay, but it's food; we believe him. He had permission before; the fathers gave him food before. Doesn't that make a difference?' "
Because the "mistake of fact" instruction had not been given, the prosecutor could answer the question he had put in the jurors' mouths without any reference to the possible relevance of the clergy's prior behavior to appellant's subjective belief. Instead, he could simply say, "It makes no difference.... Just because the Fathers were kind to him and gave him food, that in no way excuses his behavior of breaking into that church that morning and taking that food."
Had the trial court given the "mistake of fact" instruction, the prosecutor could not have made this argument, essentially implying it made no difference whether Taylor thought he had permission to eat the food inside the church he was trying to unlawfully enter. Instead he would have had to address headon the issue whether there was any evidence supporting that defense. Furthermore, defense counsel would have had an instruction on the law around which to build a focused and potentially effective argument against Taylor's guilt of the crime of burglary.
On the basis of a review of all the evidence in this record, I am convinced there is a "reasonable probability" a properly instructed jury would have found, at least to the level of entertaining a reasonable doubt, that Taylor believed he had permission to eat the food inside the church if only he could get there. (People v. Breverman (1998) 19 Cal.4th 142, 178 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) If so, they would have acquitted him of burglary (although convicting of trespass) for lack of proof of an intent to steal.
Nor can it be said the error is harmless just because the jurors "necessarily found" appellant had an intent to steal the bread (or something) when they convicted him of burglary. This bears the earmarks of a tautology—the conviction is valid despite an incomplete (and thus erroneous) instruction on intent to steal because the jury convicted defendant under that incomplete instruction. Without the rejected clarifying instruction the jurors had no way of knowing a defendant's subjective mistake of fact (or claim of right) would negate the required element of a specific intent to steal. Indeed, if they believed the prosecutor, it would not. Hence the jurors' verdict was based on an incomplete understanding of the "intent to steal" element and is meaningless as evidence of how they would have decided if fully and properly instructed on the crime of burglary in this context. Accordingly, the instructional error is not harmless either under People v. Breverman, supra, 19 Cal.4th 142, 178 or People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913].
I further note an unaddressed issue on appeal. Taylor received a longer sentence than the fictional Jean Valjean—25 years to life—over the same proverbial "loaf of bread," for only 1 reason. This offense was Taylor's "third strike." Appellant's trial counsel requested the trial court to strike one or more of Taylor's strikes, but the court refused. For some reason, however, Taylor's appellate counsel failed to cite this denial as a ground for appeal. There may well have been tactical reasons for this decision—or an intent to raise the issue through a habeas petition—so I am not criticizing appellate counsel for the absence of such a claim on appeal. Or there may be reasons beyond the record on this appeal which turned such a challenge into a futile gesture. I do observe, however, on the face of the record before this court, this seems to be one of those relatively rare cases where the defendant and the surrounding circumstances take this case "outside the spirit of the Three Strikes law." (People v. Williams (1998) 17 Cal.4th 148, 161-163 [17 Cal.4th 643b, 69 Cal.Rptr.2d 917, 948 P.2d 429].)
For the above reasons, if in the majority, I would have reversed appellant's conviction and remanded for retrial before a properly instructed jury.
If believed, the defendant here experienced a variant of this scenario. Some of the differences are in appellant's favor; others are not. Appellant tried to get bread, not silver, from the church. And he claims he believed the church had consented for him to have this food, something Valjean never thought when he took the silver. On the other hand, appellant sought to get at the food by breaking into the church rather than being invited in and then sneaking away with what he wanted.
The trial court justified his refusal to strike a strike with a claim the jury "must" have believed Taylor's true intent was to steal valuables and not food from the church. Yet several jurors offered to testify at the sentencing hearing in opposition to a third strike sentence, suggesting they did not believe the defendant was out to steal the church's "treasure." Certainly the absence of a "mistake of fact" instruction allowed the jury to find Taylor guilty of burglary even if he was only trying to get to food he believed the church wanted him to eat. For whatever reason, they obviously were uncomfortable with the notion Taylor would receive a three-strikes sentence as a result of the crime of which they actually convicted him. Meantime Taylor's prior record of convictions was ordinary and nonviolent. Even the "victim" of this crime, in the form of Father McCoy, spoke against imposing a Three Strikes sentence on this homeless man.
For the first time—and after reviewing scores of such cases over the past few years—I would be prepared to conclude a trial court abused its discretion in failing to strike one or more of a defendant's prior strikes and to modify the sentence accordingly. (Of course, if in the majority I would not reach this issue because the burglary conviction itself would be reversed and remanded for potential retrial before a properly instructed jury.)