Filed 9/25/14 P. v. Roberts CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B244723
                                                                          (Super. Ct. No. MA055365)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

JOHN D. ROBERTS et al.,

     Defendants and Appellants.



                   John D. Roberts and Jack M. Garcia appeal the judgments entered after a
jury convicted them of grand theft of personal property (Pen. Code,1 § 487, subd. (a)).
Appellants were found not guilty of vandalism (§ 594, subd. (a)) and receiving stolen
property (§ 496, subd. (a)). The trial court reduced Roberts' conviction to a misdemeanor
(§ 17, subd. (b)) and placed him on 36 months of summary probation with the condition
that he serve five days in county jail. Garcia was sentenced to three years in county jail.
                   Appellants contend the evidence of the value of the property they were
alleged to have stolen is insufficient to support their convictions of grand theft. They also
claim substantial evidence supported their good faith belief that the property had been
abandoned and, as a consequence, the court prejudicially erred in refusing to give their
requested instructions on mistake of fact (CALCRIM No. 3406) and claim of right


         1 All further undesignated statutory references are to the Penal Code.
(CALCRIM No. 1863). Both claims have merit. Accordingly, we shall reverse the
judgments and remand for further proceedings.2
                                  STATEMENT OF FACTS
                Los Angeles Deputy Sheriff Jeremiah McNutt was on patrol in Lancaster
one afternoon when he saw a Lincoln Towncar parked in front of a vacant house with a
"for sale" sign. Roberts was standing on the curb and attempting to load "a large, bulky
object" into the front seat of the vehicle. Garcia was sitting in the back seat. Roberts
"definitely was having a hard time" with the object, which appeared to be heavy and too
large to fit in the vehicle.
                Deputy McNutt got out of his vehicle and approached Roberts. Roberts
saw the deputy and dropped the object on the curb. On closer inspection, Deputy McNutt
identified the object as a "smashed" air conditioner (AC) coil. In response to questioning,
Roberts said he and Garcia were at home that afternoon when two men walked by and
said they should "check out" a piece of trash someone had left on the curb down the
street. Roberts did not know what the object was or where it had come from. He decided
to take it because he thought it had been abandoned as trash. He was planning to either
fix it or give it to someone who could use it. Garcia also said he did not know what the
object was and believed it had been left on the curb as trash. Deputy McNutt later
verified that appellants lived together in a house down the street from where the AC coil
was taken.
                It had recently rained and Deputy McNutt saw what he believed was a trail
or tracks in the grass leading to the back yard of the vacant house. The deputy concluded
the tracks were footprints, but was unable to tell when they had been made. He did not
take photographs or take impressions of the tracks, and did not notice whether appellants'
shoes were wet or muddy. The deputy followed the tracks to the back yard and
discovered that the house's AC unit had been "filleted open" and was missing its coil, fan,



         2 In light of our reversal, we need not address appellants' additional claims of
error.
                                               2
and compressor. Deputy McNutt believed the vandalism was relatively recent because
no dust had settled inside the AC unit.
               Deputy McNutt searched Roberts' vehicle and found a standard tool kit in
the trunk. There was no fan, compressor, or other parts that might have been taken from
the AC unit. There was also no reciprocating saw, and removing an AC coil without such
a saw would be difficult and time consuming. The deputy nevertheless believed that
appellants vandalized the AC unit and removed the coil with the tools from Roberts'
vehicle. He also believed that Roberts, who was 58 years old at the time and walks with
a limp, would have had a difficult time moving the coil by himself.
               Appellants were given Miranda3 advisements and placed in separate patrol
cars. Deputy McNutt asked Roberts if he knew the object was an AC coil and Roberts
replied, "I'm an electrical engineer, I would know better than you what it is, wouldn't I?"
Garcia also knew the object was an AC coil. When interviewed separately, appellants
said they had planned to take the coil to a recycling yard and reiterated they had found it
on the curb.
               Alfreda Moore's mother owned the vacant house where the AC unit was
vandalized. The house "was in perfect condition" when Moore inspected it in early
February. After learning of the vandalism, Moore went to the house and discovered that
the heater and sink faucets were also missing.
               Deputy McNutt testified that vandalism and theft of AC units was common
in the neighborhood where the incident took place. It is a common method for thieves to
steal recyclable items from several houses at a time and return with a truck to collect
them. An AC coil could be recycled for $60 to $100. A coil that had been left on a curb
would not be there very long because there were people who drove through the
neighborhoods all day looking for recyclable items. Deputy McNutt testified it was "very
reasonable" to believe that a recycler who found an AC coil sitting on a curb would pick




       3 Miranda v. Arizona (1966) 384 U.S. 436.
                                             3
it up and recycle it. He did not believe this would occur, however, unless someone left
the coil on the curb after stealing it from an AC unit on the property.
                                      DISCUSSION
                           Insufficient Evidence of Grand Theft
              Appellants contend their convictions of grand theft must be reversed
because the evidence is insufficient to support the findings that they stole property worth
more than $950. We agree.
              In reviewing claims of insufficient evidence, we examine the entire record
and draw all reasonable inferences therefrom in favor of the judgment to determine
whether there is reasonable and credible evidence from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54
Cal.4th 205, 241.) We do not reweigh the evidence or reassess the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We accept the logical
inferences that the jury might have drawn from the evidence although we would have
concluded otherwise. (Streeter, at p. 241.)
              To convict appellants of grand theft, the prosecution had to prove beyond a
reasonable doubt that appellants unlawfully took personal property with a "reasonable
and fair market value" in excess of $950. (§§ 484, subd. (a), 487, subd. (a).) As the jury
was instructed, "[The f]air market value is the price a reasonable buyer and seller would
agree on if the buyer wanted to buy the property and the seller wanted to sell it, but
neither was under an urgent need to buy or sell." (CALCRIM No. 1801, italics omitted.)
Fair market value may be established by expert testimony. (People v. Lizarraga (1954)
122 Cal.App.2d 436, 438 (Lizarraga).)
              The fair market value of a stolen item is measured at the time and place of
its theft. (People v. Pena (1977) 68 Cal.App.3d 100, 102, fn. 1 (Pena).) It does not
include the replacement cost or any other value to any particular individual. (Lizarraga,
supra, 122 Cal.App.2d at p. 438; People v. Latham (1941) 43 Cal.App.2d 35, 39; People
v. Simpson (1938) 26 Cal.App.2d 223, 228-229 (Simpson).)


                                              4
              Simpson is on point. The defendant in that case was convicted of stealing
magnetos from 12 tractors. In reversing, the Court of Appeal concluded among other
things that the trial court had erred in allowing evidence of the costs of reinstalling the
magnetos. The court reasoned: "It is not a question of what an owner would have to pay
for reinstalling a magneto; it is the market value thereof which is to be considered by the
jury in determining whether the offense is a felony or only a misdemeanor." (Simpson,
supra, 26 Cal.App.2d at p. 229.)
              Here, the prosecution purported to establish the fair market value of the AC
coil through the testimony of expert witness Sean Cooley, a seller of AC units. Cooley
first testified that from "a homeowner's perspective," the cost of an AC coil would be
"around 800 bucks" for "[l]abor, cost of the actual item[] itself. Things like that. It can
vary based on the contractor." Garcia's trial counsel objected that this estimate included
replacement costs, and the court sustained the objection. Cooley then testified that a
homeowner could not purchase an AC coil directly, but could purchase one through a
contractor for about $600.
              When presented with a hypothetical in which "[y]ou have an AC unit that's
been filleted open, the wires cut, and the AC coil removed," Cooley opined that a
replacement of the AC unit would be recommended. Cooley then testified that he had
obtained bids from two local companies to replace Moore's entire AC unit. One company
gave an estimate of $1,955, while the other gave an estimate of $2,650. Both bids
included materials, tax, and labor.
              This evidence is insufficient to establish that the AC coil appellants were
charged with stealing had a fair market value in excess of $950. As Simpson makes clear,
the fair market value of the coil does not include reinstallation costs. (Simpson, supra, 26
Cal.App.2d at p. 229.) Appellants were acquitted of vandalism, so the costs of replacing
the entire AC unit are excluded.
              When Cooley's estimated costs of reinstalling the AC coil and replacing the
entire AC unit are eliminated, we are left with his testimony that the coil had an estimated
fair market value of $600. This value is below that required for a grand theft conviction.

                                              5
But even this figure is too high, for it represents the estimated cost of a new AC coil. As
we have noted, the fair market value of the coil is measured at the time and place of its
theft. (Pena, supra, 68 Cal.App.3d at p. 102, fn. 1.) Appellants were convicted of
stealing a severely damaged coil that, according to Deputy McNutt, was worth from $60
to $100. In light of this evidence, appellants' convictions of grand theft cannot stand.
              The People contend that in lieu of reversal, we can simply modify the
judgments to reflect that appellants were convicted of the lesser included offense of petty
theft. (People v. Bailey (2012) 54 Cal.4th 740, 748.) As we shall explain, reversal is
compelled due to instructional error. In light of our finding of insufficient evidence,
however, the charges on remand are limited to the lesser offense of petty theft.
                                    Instructional Error
              Appellants contend the court prejudicially erred in refusing to instruct the
jury on the defenses of mistake of fact (CALCRIM No. 3406)4 and claim of right
(CALCRIM No. 1863).5 Again, we agree.


        4 CALCRIM No. 3406 states: "The defendant is not guilty of <insert crime[s]> if
(he/she) did not have the intent or mental state required to commit the crime because
(he/she) [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/she)
[reasonably] believed them to be, (he/she) did not commit <insert crime[s]>.
        If you find that the defendant believed that <insert alleged mistaken facts> [and if
you find that belief was reasonable], (he/she) did not have the specific intent or mental
state required for <insert crime[s]>.
        If you have a reasonable doubt about whether the defendant had the specific intent
or mental state required for <insert crime[s]>, you must find (him/her) not guilty of (that
crime/those crimes)."
        5 CALCRIM No. 1863 states: "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
                                             6
              Deputy McNutt testified that appellants told him they found the AC coil on
the curb and thought it had been abandoned as trash. Based on that evidence, appellants
requested that the jury be instructed with CALCRIM No. 3406 (mistake of fact).
Roberts' attorney asserted the instruction on mistake of fact "is made exactly for
circumstances and facts like this [case]." The trial court refused to instruct on mistake of
fact, reasoning that "the only evidence that came in about this were the statements
allegedly made by [appellants], which are contradictory. [¶] One time they say it's trash,
then they admit they know it's an AC coil -- at least one of them does. [¶] I don't believe
substantial evidence to support the defense has been raised." Appellants' further
objections were overruled.
              Appellants then requested that the jury be instructed on claim of right
pursuant to CALCRIM No. 1863. Roberts' attorney offered that "if [appellants] truly
believed, in good faith, that they had the right to such property because it was just sitting
on the curb and discarded as trash, then this is an instruction that would apply to that."
The court replied: "The only evidence here of their statements is, number one, they
thought it was trash. [¶] Then one who says, finally, no, I knew it was an AC coil.
[¶] The other one argued with the deputy, you know what it is? I know what it is. I'm an
electrical engineer, I should know more. [¶] If I'm not mistaken, that was the testimony
that came out, right? . . . [¶] Therefore, there's not substantial evidence as to that claim of
right." When appellants continued to press for the claim of right instruction, the court
said, "[w]e're done" and added, "You can't use evidence, I thought it was trash, then later,

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>."
                                               7
I knew it was an AC coil, to bolster the defense of claim of right. It doesn't fly."
Counsel's further objections were once again overruled.
              The court erred in refusing to give the requested instructions. "An essential
element of any theft crime is the specific intent to permanently deprive the owner of his
or her property. [Citation.]" (People v. Williams (2009) 176 Cal.App.4th 1521, 1526.)
The defenses of mistake of fact and claim of right each negate this element of the offense.
(See, e.g., In re Jennings (2004) 34 Cal.4th 254, 277 [mistake of fact]; People v. Wooten
(1996) 44 Cal.App.4th 1834, 1848 [claim of right].) Our Supreme Court has explained
that "'. . . a bona fide belief, even though mistakenly held, that one has a right or claim to
the property negates felonious intent. [Citations.] A belief that the property taken
belongs to the taker [citations], . . . 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. [Citation.]'" (People v. Barnett (1998) 17
Cal.4th 1044, 1143 (Barnett).) The same reasoning applies where the defendant takes
property under the mistaken belief that the property has been abandoned. (People v.
Russell (2006) 144 Cal.App.4th 1415, 1426–1427 (Russell), superseded on other grounds
as stated in People v. Lawson (2013) 215 Cal.App.4th 108, 118; People v. Navarro
(1979) 99 Cal.App.3d Supp. 1, 10–11.) The defendant's belief that the property was
abandoned must be in good faith, yet need not be objectively reasonable. (People v.
Reyes (1997) 52 Cal.App.4th 975, 984 & fn. 6; Russell, at pp. 1425–1426.)
              A defendant is entitled to have the jury instructed on these defenses where
there is substantial evidence to support them. (People v. Tufunga (1999) 21 Cal.4th 935,
944; Russell, supra, 144 Cal.App.4th at pp. 1427, 1429.) In this context, substantial
evidence means "evidence sufficient for a reasonable jury to find in favor of the
defendant." (People v. Salas (2006) 37 Cal.4th 967, 982.) "In determining whether the
evidence is sufficient to warrant a jury instruction, the trial court does not determine the
credibility of the defense evidence, but only whether ‘there was evidence which, if
believed by the jury, was sufficient to raise a reasonable doubt.' [Citations.]" (Id. at pp.
982-983.) The instructions need not be given "where the supporting evidence is minimal

                                               8
and insubstantial." (Barnett, supra, 17 Cal.4th at p. 1045.) Any doubt concerning the
sufficiency of the evidence should be resolved in favor of the accused. (Ibid.)
              Here, substantial evidence supported instructions on mistake of fact and
claim of right. In finding to the contrary, the trial court reasoned that appellants'
statements on the subject were "contradictory" because "[o]ne time they say it's trash,
then they admit they know it's an AC coil." This is not a valid reason for refusing the
instructions. The issue is whether appellants had a good faith belief the coil had been
abandoned as trash, and not whether they actually knew it was something of value. "As
the saying goes, one person's trash is another person's treasure." (People v. Tarris (2009)
180 Cal.App.4th 612, 621.) Appellants told Deputy McNutt they found the AC coil on
the curb and thought it had been abandoned as trash. Although appellants' initial claim
that they did not know what the AC coil was may have supported an inference of guilt, it
did not compel such an inference. Appellants' credibility on this point was an issue for
the jury, not the court. (See Russell, supra, 144 Cal.App.4th at p. 1430.)
              Russell supports our conclusion that appellants were entitled to the
requested instructions. The defendant in that case took an old motorcycle that was
parked outside a motorcycle repair shop. The defendant testified that he believed the
motorcycle had been abandoned based on its condition, the fact that it was parked near a
fenced area containing trash bins, and his belief that the repair shop put all of its
motorcycles in the shop after closing. (Russell, supra, 144 Cal.App.4th at pp. 1421–
1422.) In appealing his conviction for receiving stolen property, the defendant argued the
trial court had prejudicially erred in failing to instruct the jury on mistake of fact and
claim of right. The Court of Appeal agreed and accordingly reversed the conviction. The
court reasoned that there was substantial evidence from which the jury could have
inferred the defendant believed the motorcycle had been abandoned, including the
defendant's own consistent testimony to that effect, the condition and location of the
motorcycle when it was taken, and the fact the defendant had acted as though he was
entitled to possess the motorcycle. (Id. at pp. 1430–1431.)


                                               9
              Substantial evidence supporting instructions on mistake of fact and claim of
right was similarly present here. It is undisputed the AC coil was "smashed" to the point
of destruction. It is also common knowledge that people sometimes leave abandoned
items on their curb with the hope that someone will take them. Deputy McNutt himself
acknowledged that people drove through the neighborhood all day looking for abandoned
items to recycle. Moreover, appellants took the AC coil openly and in broad daylight.
They made no attempt to conceal what they were doing and gave a plausible explanation
for their actions. In light of this evidence, the jury could have inferred that appellants had
a good faith belief the coil was abandoned and thus lacked the specific intent to commit a
theft. (Russell, supra, 144 Cal.App.4th at p. 1430.)
              We also conclude the instructional error was prejudicial. The court's error
in failing to instruct on mistake of fact is reviewed under the standard set forth in People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Russell, supra, 144 Cal.App.4th at p.
1431.) Although our Supreme Court has yet to decide which standard applies to errors in
refusing to instruct on claim of right, courts have consistently applied the Watson
standard to similar types of errors. (See ibid., and cases cited therein.) We thus apply
that standard here. (Ibid.)
              Accordingly, we must decide whether it is reasonably probable that but for
the court's instructional error, appellant would have achieved a more favorable result.
(Watson, supra, 46 Cal.2d at p. 836.) "Appellate review under Watson 'focuses not on
what a reasonable jury could do, but what such a jury is likely to have done in the absence
of the error under consideration. In making that evaluation, an appellate court may
consider, among other things, whether the evidence supporting the existing judgment is
so relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.' [Citation.] 'There is a reasonable probability of a more favorable
result within the meaning of Watson when there exists "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."' [Citations.]" (Russell, supra, 144 Cal.App.4th at p. 1432.)

                                             10
              "Since the defenses at issue negate one of the elements of the offense,
[appellants] needed only to raise a reasonable doubt regarding the existence of that
element. [Citation.]" (Russell, supra, 144 Cal.App.4th at p. 1433.) Here, the court failed
to instruct the jury that a good faith belief the AC coil had been abandoned would negate
the knowledge element of the offense and thus compel a finding of not guilty. Here, as in
Russell, "[t]hese instructions would have clarified the knowledge element by ensuring
that the jury understood that a good faith belief, even an unreasonable good faith belief,
would negate one of the elements of the offense. The instructions also would have drawn
the jury's attention to facts that could raise a reasonable doubt about [appellants'] guilt. In
our view, instructions on the applicable defenses would have been more valuable to the
jury than instructions regarding the elements of the offense plus attorney argument that
the prosecution had not proven the knowledge element because [appellants] believed the
[AC coil] had been abandoned. When the court instructs on the law, it provides a
framework for the jury's analysis and judicial recognition of the applicable defenses."
(Ibid.)
              The People contend the evidence of appellants' guilt is strong. But the
evidence pointing away from guilt is adequate to warrant the requested instructions. As
we have noted, appellants did not attempt to conceal their actions and described a
scenario indicative of good faith. Moreover, in acquitting appellants of vandalism the
jury apparently had a reasonable doubt that appellants took the coil from the AC unit,
rather than finding it on the curb. Had the jury been instructed that appellants were not
guilty of theft if they had a good faith belief the coil was abandoned, even if that belief
was unreasonable, it may also have found a reasonable doubt whether appellants had the
requisite state of mind to commit the offense. Because there is "'. . . "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, supra, 144 Cal.App.4th at p. 1432),
reversal is required.




                                              11
                           CONCLUSION AND DISPOSITION
              We think it is clear that the trial court's refusal to instruct on mistake of fact
and claim of right eviscerated the defense in this case. In so ruling, the court failed to
secure the jury's understanding that appellants were not guilty if they had a good faith
belief, even if unreasonable, that the AC coil had been abandoned. Moreover, the error
undermines confidence in the jury's verdict and thus cannot be deemed harmless.
              The judgments are reversed. In light of our conclusion concerning the
value of the property appellants are charged with stealing, any retrial of the theft charge
must be limited to the misdemeanor of petty theft (§§ 488, 490).
              NOT TO BE PUBLISHED.


                                            PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.




                                              12
                                Richard E. Naranjo, Judge

                           Superior Court County of Los Angeles

                           ______________________________


             Athena Shudde, under appointment by the Court of Appeal, for Appellant
Roberts.
             Kelly C. Martin, under appointment by the Court of Appeal, for Appellant
Garcia.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney
General, for Respondent.




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