Filed 3/3/14 P. v. Marin CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                    DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138055
v.
LAZARO JESUS MARIN,                                                  (San Mateo County
                                                                     Super. Ct. No. SC077116A)
         Defendant and Appellant.


         Lazaro Jesus Marin was convicted by jury of petty theft and challenging another
person to fight in a public place after he took a bicycle from the parking area of a
recycling center. Marin’s defense at trial was that he thought the bicycle was abandoned
property, and that he honestly believed he had a right to take it. The trial court instructed
the jury on the defenses of claim of right and mistake of fact. The People concede that
the mistake of fact instruction erroneously required that mistake be not only in subjective
good faith, but objectively reasonable. The People argue that the error was harmless. We
reverse the petty theft conviction because we cannot conclude that the error did not affect
the verdict.
                                               I.       BACKGROUND
         Marin was tried by jury on charges of felony second degree burglary (Pen. Code,
§ 460, subd. (b); count 1),1 petty theft (§ 484; count 2), and misdemeanor challenging
another person to fight in a public place (§ 415, subd. (1); count 3). As to count 1, it was


         1
             All further statutory references are to the Penal Code.


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alleged that he had a prior conviction and prison term within the meanings of
sections 1170.12, subdivision (c)(1), and 667.5, subdivision (b). Marin was acquitted on
count 1 and convicted on counts 2 and 3.2 The court suspended imposition of sentence
and placed Marin on court probation for 16 months.3
                                      Evidence at Trial
       As relevant to this appeal, the following evidence was presented at trial. Zarc
Recycling in South San Francisco was in the business of recycling cans, bottles,
electronic equipment, scrap metal and other materials. The Zarc premises were
surrounded by a fence with sliding gates for a car entrance and a separate car exit. Inside
the entrance was an area where Zarc employees accepted recycling items for weighing
and purchase, as well as a parking area where trash was sometimes left by customers.
       George Cheung, a buyer for Zarc, testified that Marin was a frequent customer
who often loitered on the premises, harassed other customers, and searched through and
took items from Zarc’s bins of purchased materials without asking or paying for them.
Cheung had told Marin not to go near the bins or take things from them. He had also told
Marin 5–10 times not to take Zarc property off the premises. Cheung nevertheless
continued to purchase items from Marin.
       On November 20, 2012, another Zarc customer offered to sell Cheung an old
bicycle. Cheung initially declined, and the customer said he would just leave the bicycle
for Zarc in the parking area. Cheung decided to pay for the bicycle ($5 or $10) because
the seller was a regular customer. Cheung planned to recycle the bicycle and left it in the
parking area because he was busy with other customers. Later that morning, Cheung saw
Marin ride in through the entrance on a different bicycle, ride over to the parking area,
pick up the bicycle Cheung had just purchased, and return to the entrance with the second
bicycle. After Cheung finished with customers he was serving, he walked to the entrance
and “screamed at [Marin]: that bike belongs to us. It’s our property. And I told him not
       2
        Marin conceded guilt on count 3 in closing arguments and he raises no issue as to
that conviction on appeal.
       3
           Marin was concurrently on parole on an unrelated offense.


                                              2
to come back.” Marin apparently left both bicycles outside the Zarc fence where Cheung
said there were some trees. Marin then reentered the Zarc premises, confronted Cheung,
and eventually left.4
       Zarc reported the incident to police and Keawe Sham, an officer with the City of
South San Francisco and San Mateo County, located Marin the next day and placed him
under arrest. Marin waived his Miranda5 rights and the jury heard Sham’s taped
interview with Marin. Marin spoke freely about the incident and said he took the bicycle
because it was in the customer parking area where customers leave trash and he believed
it was abandoned property. He acknowledged that a Zarc supervisor told him not to take
the bicycle, told him the bicycle belonged to Zarc, and threatened to have him arrested
for stealing. Marin explained, however, that this supervisor had told him previously that
Zarc owned any property that was abandoned on their premises, which Marin believed
was incorrect. He said the bicycle was junk, worth about 50 cents and it was
unreasonable for Zarc to be upset about it. He thought the supervisor was harassing him.
When Sham asked Marin what he did with the bicycle, Marin hesitated and said he
“threw it somewhere.” After several further inquiries, Marin said he “threw it behind . . .
the abandoned bank . . . . [¶] . . . [¶] That Union Bank. [¶] . . . [¶] I left it in that little
storage area where the trash is. [¶] . . . [¶] I was going to give it back to them if the cops
would[’ve] come. But the cops didn’t even talk to me about it.” Sham told Marin that
the police looked for him after the incident but could not find him, and Marin responded,
“I should[’ve] just stayed there. [¶] . . . [¶] . . . I made a mistake in leaving.”
       Marin testified in his own defense. He denied that he took things from Zarc’s bins
without asking first; sometimes he would pick up items, but if Zarc staff said he could not
take or buy an item, he would put it back. Except for an argument over a clock on
November 19, 2012, Marin denied that Cheung had previously told him not to take
anything from Zarc premises or thrown him off of Zarc property.


       4
           Surveillance video of the incident largely confirmed this sequence of events.
       5
           Miranda v. Arizona (1966) 384 U.S. 436.


                                                  3
       On the morning of November 20, 2012, Marin returned intending to apologize for
the clock incident the night before. As soon as he arrived, Cheung told him to leave and
not to touch anything on Zarc premises. Marin testified that he took the bicycle because
he believed it was trash and there was no sign saying not to touch it: he believed he had a
legal claim to it. He would not have taken the bicycle if Cheung had said he had paid for
it. He did not flee after he took the bicycle. “I . . . waited by the fence [for them] to call
the police. And [the manager] waited for me to leave.” Marin acknowledged that after
he took the bicycle, the manager told him that he could not take anything from the Zarc
premises, even trash. Marin said the manager could go ahead and call the police because
it was just trash. Marin waited by the trees where he had left the bicycle, but the police
never arrived.
                               Jury Instructions on Petty Theft
       Consistent with CALCRIM No. 1800, the court instructed the jury that: “To prove
that the defendant is guilty of [petty theft], the People must prove that: [¶] 1. [he] took
possession of property owned by someone else; [¶] 2. [he] took the property without the
owner’s [or the owner’s agent’s] consent; [¶] 3. when [he] took the property he intended
to deprive the owner of it permanently[;] AND [¶] 4. [he] moved the property, even a
small distance, and kept it for any period of time, however brief. [¶] . . . [¶] . . . For petty
theft the property can be of any value, no matter how slight. . . .” The court also
instructed, pursuant to CALCRIM No. 251, that the crime of petty theft requires proof
that the person “not only intentionally commit the prohibited act, but [did] so with a
specific intent . . . [¶] . . . to deprive the owner permanently of the property.”
       On the claim of right defense, the court instructed in accordance with CALCRIM
No. 1863: “If the defendant obtained the property under a claim of right he did not have
the intent required for the crime of theft. [¶] The defendant obtained the property under a
claim of right if he believed in good faith that he had a right to the specific property 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 of the facts known to
him at the time he obtained the property, along with all the other evidence in the case.


                                                4
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 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, you must find him not guilty of . . . petty
theft.”
          On the mistake of fact defense, the court instructed pursuant to CALCRIM
No. 3406: “The defendant is not guilty of . . . petty theft . . . if he did not have the intent
required to commit the crime because he reasonably did not know a fact or reasonably
and 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 . . . petty theft.
[¶] If you find that the defendant believed that the bicycle was abandoned property and if
you find that belief was reasonable, he did not have the specific intent for . . . petty theft.”
(Italics added.)
                                      II.    DISCUSSION
          The People concede that the jury instruction on the mistake of fact defense was
erroneous. A defendant may refute guilt by showing a mistake of fact disproving a
required criminal intent. (In re Jennings (2004) 34 Cal.4th 254, 276–277.) “A mistake
of fact may constitute a defense even though it is unreasonable.” (1 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Defenses, § 47(2), p. 480, citing People v. Navarro
(1979) 99 Cal.App.3d Supp. 1.) “For general intent crimes, the defendant’s mistaken
belief must be both actual and reasonable, but if the mental state of the crime is a specific
intent or knowledge, then the mistaken belief must only be actual.” (People v. Lawson
(2013) 215 Cal.App.4th 108, 115.) Bench Notes following CALCRIM No. 3406
recognize this rule and direct that “[i]f the mental state element at issue is either specific
criminal intent or knowledge, do not use the . . . language requiring the belief to be


                                               5
reasonable.” (Judicial Council of Cal., Crim. Jury Instns. (2013) Bench Notes to
CALCRIM No. 3406, pp. 902–903, citing People v. Reyes (1997) 52 Cal.App.4th 975,
984 & fn. 6; People v. Russell (2006) 144 Cal.App.4th 1415, 1425–1426 (Russell),
superseded on other grounds as stated in People v. Lawson, at p. 118.) Thus, the
instruction should have read, “If you find that the defendant believed that the bicycle was
abandoned property, he did not have the specific intent required for . . . petty theft,”
rather than, “If you find that the defendant believed that the bicycle was abandoned
property and if you find that belief was reasonable, he did not have the specific intent
required for . . . petty theft.” (Italics added.)6
       The question is whether the instructional error was prejudicial.
A.     Reversible Error Standard
       The parties disagree about the applicable standard for reversible error. Marin
argues the error was structural and requires per se reversal of his conviction. He relies on
federal appellate decisions holding that an erroneous refusal to instruct on a defense as
requested by the defendant is reversible error per se. (See United States v. Escobar de
Bright (9th Cir. 1984) 742 F.2d 1196, 1201–1202 [failure to instruct on a defense
supported by evidence and law is per se reversible error]; United States v. Zuniga (9th
Cir. 1993) 6 F.3d 569, 571–572 [same but recognizing exception where other instructions
adequately cover the defense theory]; United States v. Romm (9th Cir. 2006) 455 F.3d
990, 1002 [same].) Here, the trial court did not refuse the defendant’s request for an
instruction on mistake of fact; it gave the instruction in exactly the (erroneous) form
submitted by counsel In any event, Ninth Circuit decisions are not binding on this court.


       6
         The defense requested CALCRIM No. 3406. Counsel were directed by the court
to meet and confer, and to provide appropriately redacted instructions to the court.
Despite making other revisions to this instruction, counsel failed to delete the incorrect
language. Nevertheless, the trial judge court is obliged to fully and correctly instruct the
jury on general principles of law, and error is only “invited” if the record shows a
conscious and deliberate tactical choice by counsel to request the instruction as given.
(People v. Graham (1969) 71 Cal.2d 303, 319–320, disapproved on other grounds by
People v. Ray (1975) 14 Cal.3d 20, 29, fn. 7.) No such deliberate choice is evident here.


                                                 6
(People v. Federico (2011) 191 Cal.App.4th 1418, 1424, fn. 4.) In the alternative, Marin
argues the error is subject to review under the Chapman7 standard—whether the error
was harmless beyond a reasonable doubt. Applying a Chapman standard, an instructional
error that removes a material issue from the jury’s consideration, may nevertheless be
harmless beyond a reasonable doubt if the issue was either necessarily decided under
other instructions or if the evidence supporting the issue is so overwhelming that no
rational jury could reach a different result. (People v. Johnson (1993) 6 Cal.4th 1, 45–
47.)
       The People draw our attention to Russell, supra, 144 Cal.App.4th 1415, which
holds, “Error in failing to instruct on the mistake-of-fact defense is subject to the
harmless error test set forth in [Watson8].” (Russell, at p. 1431.) As authority for this
holding, Russell cites People v. Mayer (2003) 108 Cal.App.4th 403, 413 (Mayer).
(Russell, at p. 1431.) Mayer, however, applies Watson without any analysis or citation to
authority. (Mayer, at p. 413.) And Russell addresses the reversible error standard for a
different error: failure to sua sponte instruct on the mistake of fact defense. (See Russell,
at p. 1431; see also Mayer, at pp. 412–413 [failure to instruct on mistake of fact, but
unclear whether defendant had requested the instruction]; People v. Hanna (2013)
218 Cal.App.4th 455, 462–463 [failure to instruct]; People v. Zamani (2010)
183 Cal.App.4th 854, 866 [failure to instruct].) The Watson standard of prejudicial error
requires the defendant to show it is reasonably probable he or she would have obtained a
more favorable result had the instructional error not occurred. (Watson, supra, 46 Cal.2d
at p. 836.) In determining whether such an instructional error was prejudicial, we focus
not on what a reasonable jury could have done, but rather what the jury likely would have
done in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 177.) In
so doing, we “may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome


       7
           Chapman v. California (1967) 386 U.S. 18.
       8
           People v. Watson (1956) 46 Cal.2d 818, 836.


                                              7
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (Ibid.) This standard requires “ ‘ “at least such
an equal balance of reasonable probabilities as to leave the court in serious doubt as to
whether the error affected the result.” ’ ” (Russell, at p. 1432.)
       We need not decide, however, which standard of review applies, because we
conclude that even under the less rigorous Watson standard, we cannot find the error
harmless.
B.     Harmless Error Analysis
       A claim of mistake of fact is an affirmative defense, and a defendant has the
burden of raising a reasonable doubt as to whether he harbored a reasonable and good
faith belief. (People v. Simmons (1989) 213 Cal.App.3d 573, 579 [mistake of fact as to
victim’s consent in a sexual assault case].) Nevertheless, the prosecution retains the
ultimate burden of proving a defendant had the requisite wrongful intent. (People v.
Howard (1996) 47 Cal.App.4th 1526, 1533, disapproved on other grounds in People v.
Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11.)
       Here the jury entertained at least a reasonable doubt that Marin entered the Zarc
yard with the intent to commit theft, since it acquitted him of the felony burglary charge.
The only remaining question was then whether Marin had the necessary criminal intent at
the time he took the bicycle from the parking area and removed it from the Zarc
premises. The People correctly point out that the jury was properly instructed, with
respect to the claim of right defense—that Marin was not guilty of theft if he believed in
good faith that he had a claim of right to the bicycle, even if his belief was unreasonable
(as long as it was not so completely unreasonable that the jury was compelled to conclude
the belief was not held in good faith). In convicting Marin, the jury clearly rejected that
defense. Marin’s alleged mistake of fact—that the bicycle was abandoned—is essentially
identical to his claim of right, i.e., that he had the right to take the bicycle because it was
abandoned property. Therefore, if we could conclude that the jury necessarily decided
that Marin did not have a good faith belief, reasonable or unreasonable, that he had a



                                               8
right to take the bicycle, we could conclude that the error in the mistake of fact
instruction was harmless.
       We cannot, however, necessarily draw that inference, because there was another
basis on which the jury could have rejected the claim of right defense. The jury was
instructed, “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.”9 The
prosecutor specifically argued to the jury it should reject Marin’s claim that he thought he
had a right to take the property because “these defenses do not apply,” if the defendant
conceals the taking after it was discovered, and that Marin did so. She did not
differentiate the mistake of fact defense, and told the jury that it should focus on the word
“reasonably” and what Marin could reasonably believe.
       The evidence was overwhelming that any belief that Marin may have had that he
could take the bicycle was objectively unreasonable. Marin acknowledged that he was
directly told that he could not take it. But a properly instructed jury could nonetheless
have found a reasonable doubt about whether he subjectively believed, albeit
unreasonably, that the bicycle was abandoned.
       It was undisputed that Marin took the bicycle openly, and Marin consistently
claimed he believed the bicycle was abandoned, including his statements to Cheung and a
manager during the incident, his statements to Sham, and in trial testimony. Cheung
confirmed that customers occasionally left trash in the parking area, and Marin testified
without contradiction that he frequently “cleaned up” the trash in that area.




       9
          This language apparently is based on section 511, which establishes a statutory
claim of right defense for embezzlement and has been applied to other theft offenses.
(Judicial Council of Cal., Crim. Jury Instns. (2013) Bench Notes to CALCRIM No. 1863
(2013) pp. 1181–1182; People v. Wooten (1996) 44 Cal.App.4th 1834, 1848–1849
[discussing § 511]; People v. Tufunga (1999) 21 Cal.4th 935, 952, fn.4 [discussing
application of § 511 to other theft offenses].) Section 511 provides, “[I]t is a sufficient
defense that the property was appropriated openly and avowedly, and under a claim of
title preferred in good faith . . . .” (Italics added.)


                                              9
       But even if the jury found that this evidence raised reasonable doubt about
whether Marin’s claimed belief that he had a right to take the bicycle as abandoned
property was held in good faith, it may have believed it was required to reject Marin’s
defense, and find him guilty of petty theft if it found he concealed the bicycle after the
taking, either outside the Zarc fence, or later in placing it, as he admitted, behind a bank.
       Under these circumstances, we are left with “ ‘ “serious doubt as to whether the
error affected the result” ’ ” (Russell, at p. 1432), and reversal is required.
                                     III.   DISPOSITION
       The petty theft conviction is reversed, and the matter is remanded to the trial court
for further proceedings consistent with the views expressed in this opinion.




                                                   _________________________
                                                   Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.




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