      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      ]                                       r-o
                                                                                  <=>
                                                                                             C/3CD
                                                                                             —IC
                                                 DIVISION ONE
              Respondent,                 ]                                        5;        o-n,.,.
                                          1      No. 69293-3-1
                   v.                     ]
                                                 UNPUBLISHED OPINION                 5S       ^r-*
ROBERT RALPH BERG,                        |                                             ^      —*o
                                                                                        ro     S-'S
             Appellant.                    i     FILED: January 21,    2014



       Dwyer, J. — Robert Berg appeals the judgment entered on his conviction

for one count of robbery in the second degree. Berg contends that his counsel

rendered ineffective assistance by failing to request a jury instruction on the

defense of good faith claim of title. In his statement of additional grounds, Berg

further contends that his counsel rendered ineffective assistance by failing to

object to his improper sentence. Finding no deficiency in defense counsel's

performance, we affirm.

                                          I


       On July 29, 2011, Berg and his fiance, Jeanette Conger, went to North
Park Grocery on Aurora Avenue North in Seattle to obtain beer. Conger, who
was driving Berg's brother's vehicle, parked on the street in front of the store and
waited there while Berg went inside. Chaesun Osaka, owner of North Park
No. 69293-3-1/2



Grocery, was working alone in the store that day. Osaka recognized Berg from

his prior visits to the store, although she had not seen him recently. Osaka

greeted Berg, but he did not respond. Instead, Berg briefly looked around, then

walked to the cooler where the beerwas stored. Berg removed two cases1 of
beer from the cooler. Osaka moved toward the register in expectation that Berg

would approach her to pay for the beer. Rather than approaching the register,

however, Berg simply walked out of the store with one case in each hand.

Osaka yelled at Berg and followed him outside.

       Once outside, Osaka grabbed Berg, attempting to retrieve the beer. Berg

struck Osaka, causing minor injuries to her finger and tooth, and dropped one

case of beer in the process. After Conger yelled at Berg to get in the car, Berg

entered the passenger's side of the vehicle through an already open door.
Conger then drove away from the store. James and Kristine Hunter, who were
traveling southbound on Aurora Avenue, witnessed the altercation and informed
police about the incident.

       The State charged Berg with one count of robbery in the second degree.

On July 23, 2012, the case went before a jury. At trial, Berg testified on his own
behalf.2 Berg testified that three days prior to the incident, Berg had struck a
bartering agreement with an elderly Asian man at North Park Grocery. Pursuant
to the agreement, Berg obtained beer and tobacco in exchange for two
commemorative gold coins, which were to be held as collateral untjil Berg could

        1Witnesses refer to the packages of beer as "cases," "half racks," and "(sacks." The
exact nature of the packaging is not relevantto the issues on appeal.
        2Congeralso testified for Berg.

                                              -2-
No. 69293-3-1/3



pay for the items. Berg testified that on July 29, 2011, he placed two

commemorative gold coins on the counter before removing the beer from the

cooler. Osaka, however, testified that Berg did not give her any gold coins and

that no elderly Asian man had ever worked at her store.

       Defense counsel proposed a jury instruction on lawful force in defense of

property, but not an instruction on good faith claim of title. The trial court gave

the following pertinent instructions to the jury:

             A person commits the crime of robbery in the second degree
       when he or she unlawfully and with intent to commit theft thereof
       takes personal property from the person or in the presence of
       another, against that person's will by the use or threatened use of
       immediate force, violence, or fear of injury to that person or to that
       person's property. The force or fear must be used to obtain or
       retain possession of the property or to prevent or overcome
       resistance to the taking, in either of which cases the degree of force
       is immaterial.

Jury Instruction 5.

              A person acts with intent or intentionally when acting with the
       objective or purpose to accomplish a result that constitutes a crime.

Jury Instruction 6.

              Theft means to wrongfully obtain or exert unauthorized
       control over the property or services of another, or the value
       thereof, with intent to deprive that person of such property or
       services.


Jury Instruction 7.

               To convict the defendant of the crime of robbery in the
       second degree, each ofthe following elements ofthe crime fnust be
        proved beyond a reasonable doubt:
              (1) That on or about July 29, 2011, the defendant unlawfully
       took personal property from the person or in the presence of
        another;
               (2) That the defendant intended to commit theft ofthe
No. 69293-3-1/4



       property;
              (3) That the taking was against the person's will by the
       defendant's use or threatened use of immediate force, violence or
       fear of injury to that person or to that person's property;
              (4) That force or fear was used by the defendant to obtain or
       retain possession of the property or to prevent or overcome
       resistance to the taking; and
              (5) That the acts occurred in the State of Washington.

Jury Instruction 9.

              It is a defense to a charge of robbery in the second degree
       that the force used was lawful as defined in this instruction.
              The use of force upon or toward the person of another is
       lawful when used by a person who reasonably believes that he is
       about to be injured in preventing or attempting to prevent a
       malicious trespass or other malicious interference with real pr
       personal property lawfully in that person's possession, and vi/hen
       the force is not more than is necessary.

Jury Instruction 10. The jury found Berg guilty as charged.

       The trial court entered judgment on August 29, 2012. The State and

defense counsel both calculated Berg's offender score as 3. Berg disagreed and

contended that his offender score should be 0. Berg asserted that because he

had been crime free for a 10-year period, all of his old convictions washed out.

Defense counsel pointed out, however, that Berg had misdemeancjr convictions
within the last 10 years that would prevent two offenses from washing out. The

trial court held that under the Sentencing Reform Act of 1981,3 misdemeanor
                                                                        i

convictions prevent pre-1984 convictions from washing out. As Berg had been

previously convicted of burglary in the second degree in 1976, assault in the
second degree in 1978, and escape in the first degree in 1979, thej trial court


         Ch. 9.94A RCW.


                                         -4-
No. 69293-3-1/5



calculated Berg's offender score to be 3.4 The trial court sentenced Berg to 14
months in prison, plus 18 months of community custody for having committed a

violent offense.

       Berg appeals.

                                               II


       Berg contends that his trial counsel rendered ineffective assistance by not

requesting a jury instruction on the defense of good faith claim of title. We

disagree.

       In order to establish ineffective assistance of counsel, the defendant must
establish both that his attorney's performance was deficient and that the

deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendricksoh, 129 Wn.2d
61, 77-78, 917 P.2d 563 (1996). "Where the claim of ineffective assistance is
based upon counsel's failure to request a particular jury instruction, the
defendant must show he was entitled to the instruction, counsel's performance

was deficient in failing to request it, and the failure to request the instruction
caused prejudice." State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996
(2012) (citing State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007)).
Deficient performance is performance falling "below an objective standard of
reasonableness based on consideration of all the circumstances." State v.

 McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong


        4The trial court counted the burglary in the second degree and assault iji the second
degree as one offense.

                                              -5-
No. 69293-3-1/6



presumption that defense counsel's performance was reasonable. State v.

Weaville, 162 Wn. App. 801, 823, 256 P.3d 426 (2011). "[I]t is all tqo easy for a

court, examining counsel's defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable." Stripkland, 466

U.S. at 689. Accordingly, "judicial scrutiny of counsel's performance must be
highly deferential." Strickland, 466 U.S. at 689.

        Here, defense counsel was not ineffective in not proposing a jury

instruction on good faith claim of title.5 Berg's theory of the case w4s that he had
paid for the beerwith commemorative gold coins before he left the store. In
order for Berg to be found guilty of robbery in the second degree, the State had
to prove that he "unlawfully took personal property from the person or in the
presence of another" and that he "intended to commit theft of the property." Jury
Instruction 9. If the jury found that Berg had paid for the beer, then it could not
find that he had the intent to commit theft. Thus, the jury could not, in that

circumstance, find him guilty. Moreover, as the instruction propose^ by counsel
                                                                                       i
and given by the trial court articulates, the jury could not have foun^l Berg guilty
of robbery in the second degree if his use of force against Osaka had been a

        5The pattern jury instruction on good faith claim oftitle reads as follows:
               It is a defense to a charge oftheft thatthe property or service w^s
         appropriated openly and avowedly under a good faith claim of title, even if the
         claim is untenable.
                 The [State] [City] [County] has the burden ofproving beyond a
         reasonable doubtthat the defendantdid not appropriate the property openly and
         avowedly under a good faith claim of title. If you find that the [State] [City]
         [County] has not proved the absence of this defense beyond a reasonable doubt,
         it will be your duty to return a verdict of not guilty [as to this charge].   |
 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 19.08, at319 (3d
 ed. 2008).
No. 69293-3-1/7



reasonable attempt to "prevent a malicious trespass . . . with . . . personal

property lawfully in that person's possession." Jury Instruction 10 (Emphasis

added). Berg's defense that he had paid for the beer with commerriorative gold

coins was thus covered by the jury instructions on the elements of robbery in the

second degree and on the affirmative defense of the use of force in the

protection of property. Any instruction on good faith claim oftitle wtj>uld have
been duplicative and unnecessary. Therefore, defense counsel's performance

was not deficient in failing to request such an instruction.

       Moreover, "[w]here defense counsel's conduct can be characterized as a

legitimate trial strategy or tactic, it does not constitute deficient performance."
Weaville, 162 Wn. App. at 823. By not requesting a jury instruction on good faith

claim of title, defense counsel did not need to argue good faith on berg's part.
Such an argument would have been difficult to sustain, given that psaka clearly
objected to Berg taking the beer. Osaka's actions were inconsistent with the
existence of an agreement with Berg. Berg's retention of the beer, in the face of
the store owner's energetic objection, would be difficult to justify to the jury on the

basis of a good faith claim of title. Instead, defense counsel was able to argue
mere belief on Berg's part. As previously noted, if the jury had accepted this
theory, the intent element of robbery in the second degree would be lacking and
the jury could not have found Berg guilty. Arguing belief instead of good faith
belief was a legitimate trial tactic, and defense counsel cannot be deemed
deficient for having argued Berg's case in this manner.

       Finally, we note that the testimony in this case would not support the

                                          -7-
No. 69293-3-1/8



issuance of the requested instruction.

                Intent to steal is an essential element of the crime of
         robbery. State v. Hicks, 102 Wn.2d 182, 683, P.2d 186 (1984);
         State v. Steele. 150 Wash. 466, 273 P. 742 (1929). Therefore, a
         person cannot be guilty of robbery in forcibly taking property from
         another if he does so under the good faith belief that he is th0
         owner, or entitled to possession of the property. This good faith
         belief negates the requisite intent to steal. State v. Steele, sjjpra.
                However, the defense of good faith claim of title is available
         only where self-help is used to recover specific property. Strife v.
         Brown, 36 Wn. App. 549, 676 P.2d 525, review denied, 101 Wn.2d
         1024 (1984). Thus, where a person uses force to collect a debt
         with no claim of ownership in the specific property acquired, the
         requisite intent to steal is present and the defense is unavailable.
         State v. Larsen, 23 Wn. App. 218, 596 P.2d 1089 (1979); State v.
         Brown, supra.

State v. Self, 42 Wn. App. 654, 657, 713 P.2d 142 (1986) (emphasis in original).

         Here, Berg did not testify that he had an ownership interest in the beer

prior to going to the store. As discussed in Self:

                Here, the record is totally devoid of any evidence that Self or
         Lewis [Self's cohort] had a claim of title to the specific cash, Wallet,
         keys, credit cards and other property that were taken by force. . . .
         [T]he defense is notavailable when a debt is unliquidated.

42 Wn. App. at 657 (emphasis in original).

         Thus, Berg's counsel's decision not to seek an instruction on good faith

claim of title likely resulted from his determination that the facts of the case did
not warrant one and his tactical decision not to make an improper request of the
court.

         As Berg fails to demonstrate any deficient performance on defense
counsel's behalf, we need not reach the issue of prejudice. See H^ndrickson,
129 Wn.2d at 78 ("If either part of the test is not satisfied, the inquiijy need go no

                                           -8-
No. 69293-3-1/9



further.")



        In his statement of additional grounds, Berg contends that defense

counsel rendered ineffective assistance by failing to object to Berg's improper

sentence. This is so, Berg contends, because (1) the term of his pa1role violates
the Sentencing Reform Act of 1981, (2) defense counsel ignored the holding in
                                                                       i

State v. Chavez, 52 Wn. App. 796, 764 P.2d 659 (1988), after Berg brought the

case to his attention, (3) Berg's conviction in 1994 for assault should not have

been used to calculate his offender score, and (4) the condition that he is not to

leave the county is only applicable to parolees with prior sexual offenses, which

Berg does not have. All of Berg's arguments lack merit.

        Berg contends, first, that defense counsel was ineffective for failing to

object to a term of parole that violates the Sentencing Reform Act of 1981. This
is so, he asserts, because 18 months of community custody is longer than

authorized by statute. RCW 9.94A.701(2) mandates that the court 'jshall, in
addition to the other terms of the sentence, sentence an offender to community

custody for eighteen months when the court sentences the person to the custody
of the departmentfor a violent offense that is not considered a serious violent

offense." Robbery in the second degree is a violent offense that is not

considered a serious violent offense. RCW 9.94A.030(45), (54). The trial court

imposed the proper term of community custody. There was no error.

        Berg next contends that defense counsel was ineffective for riot relying on
Chavez after Berg informed counsel ofthe case. Chavez was explicitly overruled

                                         -9-
No. 69293-3-1/10



by our Supreme Court in In re Pers. Restraint of Sietz. 124 Wn.2d 645, 650, 880

P.2d 34 (1994). Defense counsel was not ineffective for declining to rely on a

case that had been overruled.


      Third, Berg contends that defense counsel was ineffective for failing to

objectto inclusion of an assault conviction from 1994 in calculating [lis offender

score. The record reveals that the trial court did not include any cohvictions from

1994 in calculating Berg's offender score. Rather, the trial court, in its calculation

of Berg's offender score, relied on the following convictions: burglary in the

second degree from 1976, assault in the second degree from 1978, and escape

in the first degree from 1979. The error asserted by Berg, did not, in fact, occur.

As Berg was not improperly sentenced, defense counsel had no grounds to

object and thus did not render ineffective assistance by not doing sd.

       Finally, Berg asserts that he should not have been subjected to the

condition that he is not to leave the county, as such a condition is only applicable

to persons with prior sexual offenses. The record does not provide Us with a

basis to review this contention. The terms of community custody imposed by the

trial court state that Berg is to "[r]emain within geographic boundaries, as set

forth in writing by the Department of Corrections Officeror as set forth with

SODA order." No writing is included in the record that indicates what, if any,

geographic boundaries have been set by the Department of Corrections. As
such, we cannot review whether Berg's sentence was improper on this basis nor

whether defense counsel was ineffective for failing to object.



                                          10
No. 69293-3-1/11



             Affirmed.


                         ^±\^^f (/•
We concur:




              \_              6ua^




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