Filed 3/26/14 P. v. Velazquez CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B247404

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA099119)
         v.

FRANCISCO LOPEZ VELAZQUEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F.
Mars, Judge. Affirmed.


         Emily Lowther, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Shawn McGahey Webb,
Deputy Attorney General, for Plaintiff and Respondent.


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       Using a pellet gun that resembled a pistol, defendant Francisco Lopez Velazquez
took a bottle of brandy from a Food 4 Less store and was convicted of two counts of
second degree robbery. In this appeal, he argues his conviction must be reversed because
the trial court refused to give an instruction on the “claim of right” defense. We find no
error and affirm.
                              FACTS AND PROCEDURE
       On August 21, 2012, Food 4 Less manager Ignacio Lomeli noticed defendant in
the liquor department of the Food 4 Less store with a gun. Defendant moved the gun
from his front waist to his back waist. Defendant selected a liquor bottle from the shelf
and then put that bottle back and took another. Defendant concealed the second bottle in
his waist. Defendant’s shirt covered his waist. After observing this series of events,
Lomeli asked Rafael Castellon, a customer service manager, for assistance with
defendant.
       Defendant walked past the cash registers and did not pay for the bottle hidden in
his waistband. Lomeli and Castellon then confronted him. Lomeli told defendant to
return the bottle, and defendant denied having the bottle and pretended to be confused by
the question. Lomeli asked again, and defendant said “that’s my bottle.”
       After being asked several times, defendant gave Castellon the bottle, which he
removed from his waist. Lomeli asked defendant what was in the back of his pants and
defendant pulled out a gun, which Lomeli thought was a pistol but was really a pellet
gun. Defendant repeated three to five times “I’ll fucking kill you. It’s my fucking
bottle.” Castellon believed the gun was real and relinquished the bottle to defendant
because defendant pointed the gun at him. Lomeli and Castellon were able to record
defendant’s license plate number, and defendant was apprehended shortly after leaving
the Food 4 Less. A bottle of brandy and a pellet gun were found in defendant’s car.
       Neither Lomeli nor Castellon observed defendant enter the store.
       Defendant was charged with and convicted of two counts of second degree
robbery. Defendant was sentenced to concurrent three-year prison terms.



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                                       DISCUSSION
       The sole issue on appeal is whether the trial court should have instructed jurors
with a “claim-of-right” instruction. Defense counsel requested the instruction,
emphasizing that defendant said the bottle belonged to him. The trial court found no
evidence defendant had a good faith belief he owned the bottle, and refused to give the
instruction. Defendant demonstrates no error.
       CALCRIM No. 1863 provides:
       “If the defendant obtained property under a claim of right, (he/she) did not have
the intent required for the crime of (theft/ [or] robbery).
       “The defendant obtained property under a claim of right if (he/she) believed in
good faith that (he/she) had a right to the specific property or a specific amount of
money, and (he/she) openly took it.
       “In deciding whether the defendant believed that (he/she) had a right to the
property and whether (he/she) held that belief in good faith, consider all the facts known
to (him/her) at the time (he/she) 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 that 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.]
       “[The claim-of-right defense does not apply to offset or pay claims against the
property owner of an undetermined or disputed amount.]
       “[The claim-of-right defense does not apply if the claim arose from an activity
commonly known to be illegal or known by the defendant to be illegal.]
       “If you have a reasonable doubt about whether the defendant had the intent
required for (theft/ [or] robbery), you must find (him/her) not guilty of
________________<insert specific theft crime>.” (First and second italics added.)
       “The claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from another negates the


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felonious intent necessary for conviction of theft or robbery. At common law, a claim of
right was recognized as a defense to larceny because it was deemed to negate the animus
furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230 . . . .)”
(People v. Tufunga (1999) 21 Cal.4th 935, 938.) The intent to steal is inconsistent with a
“good faith belief that the specific property taken is one’s own.” (Id. at p. 939.) “‘[A]
trial court is not required to instruct on a claim-of-right defense unless there is evidence
to support an inference that [the defendant] acted with a subjective belief he or she had a
lawful claim on the property.’” (Id. at p. 944.) Where evidence of a claim-of-right
defense is minimal or insubstantial, the court is not required to instruct on it. (People v.
Barnett (1998) 17 Cal.4th 1044, 1146-1147; see also People v. Romo (1990) 220
Cal.App.3d 514, 519-520 [claim-of-right defense not warranted where no evidence
defendant “had a bona fide claim to” property].)
       The claim-of-right defense does not apply if the defendant conceals the taking
“when it occurs or after it is discovered.” (People v. Wooten (1996) 44 Cal.App.4th
1834, 1849.) “The defense also does not apply where ‘although defendant may have
“believed” he acted lawfully, he was aware of contrary facts which rendered such a belief
wholly unreasonable, and hence in bad faith.’” (Ibid.)
       Here, the trial court properly refused to instruct jurors on the claim-of-right
defense. Defendant concealed the bottle in his waist band, and such concealment negates
the defense. Even absent the concealment, there was no evidence defendant had a “good
faith” belief that the bottle belonged to him. In the context of this case defendant’s
unexplained assertions that “it’s my fucking bottle,” cannot be interpreted as a legal
entitlement to the bottle. The only evidence showed defendant took the bottle from the
shelf and placed it in the front of his waist. When confronted, defendant removed the
bottle from the front of his waist, the same location where Lomeli saw him place it.
Defendant did not testify and there was no evidence showing he previously purchased the
bottle or entered the store with the bottle. The fact that Lomeli and Castellon did not see
defendant enter the store is irrelevant because there was no evidence defendant entered
the store with the bottle or that defendant had a bona fide claim to the bottle. The trial


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court did not make any credibility determinations as the evidence showed only that
defendant was at the liquor department of the store with what looked like a gun, took a
liquor bottle from the shelf, concealed it on his person, and attempted to leave the store
without paying for it. No evidence supported the theory that defendant believed he
owned the bottle.
       Any assumed error in failing to give the claim of right instruction was harmless.
Under that instruction, jurors could find the claim of right defense applicable only if
defendant openly took the bottle and did not conceal it. The undisputed evidence
showed, however, that defendant took the bottle and immediately concealed it.
Additionally, defendant told Lomeli that he did not have any bottle. Because the
evidence supporting the conviction was overwhelming, it is not reasonably probable the
result would have been more favorable to defendant had the trial court instructed jurors
with the claim of right defense. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
                                      DISPOSITION
       The judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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