Filed 5/29/14 P. v. Miller CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065282

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF026737)
                                                                    (Super. Ct. No. SWF027400)
PAUL BRIAN MILLER, JR., et al.,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Riverside, Mark A. Mandio,

Judge. Affirmed.

         Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant Paul Brian Miller, Jr.

         Renee Rich, under appointment by the Court of Appeal, for Defendant and

Appellant Alejandro Gallardo.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

        Paul Brian Miller, Jr., and Alejandro Gallardo separately appeal their convictions

of first degree robbery and first degree burglary following their joint Riverside County

jury trial.

        The amended information charged Miller and Gallardo jointly with the following

four offenses: (1) first degree robbery in an inhabited dwelling (count 1: Pen. Code,1

§§ 211, 212.5, subd. (a)); (2) carjacking (count 2: § 215, subd. (a)); (3) first degree

burglary in an inhabited dwelling (count 3: § 459); and (4) making a criminal threat

(count 4: § 422). Gallardo was separately charged with the following four additional

offenses: (1) possession of a firearm (a shotgun) by a person previously convicted of a

violent offense (count 5: former § 12021.1, subd. (a)); (2) possession of ammunition by a

person prohibited from owning and possessing a firearm (count 6: former § 12316, subd.

(b)(1)); (3) possession of methamphetamine (count 7: Health & Saf. Code, § 11377,

subd. (a)); and (4) possession of drug paraphernalia (count 8: Health & Saf. Code, §

11364).

        The information also alleged as to counts 1 through 4 that Miller personally used a

firearm (a handgun) (counts 1 and 2: §§ 12022.53, subd. (b), 1192.7, subd. (c)(8); counts

3 and 4: § 12022.5, subd. (a), 1192.7, subd. (c)(8)); and that Gallardo participated as a


1      All further statutory references will be to the Penal Code unless otherwise
specified.
                                              2
principal knowing that another principal (Miller) was armed with a firearm (counts 1-4:

§ 12022, subd. (a)(1), 1192.7, subd. (c)(8)). It was also alleged that Miller committed the

offenses charged in counts 1 through 4 while released from custody pending trial on a

felony offense (§ 12022.1). It was further alleged that Gallardo served three prior prison

terms (§ 667.5, subd. (b)), had one serious felony prior (§ 667, subd. (a)), and had one

prior strike conviction (§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).

       After the jury was sworn and before opening statements, Gallardo pleaded guilty

to counts 5 through 8. During trial, the court granted the prosecution's motion to dismiss

count 4 (criminal threat) as to Gallardo.

       The same jury found both defendants guilty of first degree robbery (count 1) and

first degree burglary (count 3), found both not guilty of carjacking (count 2), and found

Miller not guilty of making a criminal threat (count 4). The jury found Miller committed

his offenses in this case while released from custody pending trial on a felony offense.

The jury found the firearm allegations not true as to both defendants. In a bifurcated

proceeding, Gallardo admitted the prior prison term allegations, the prior serious felony

conviction allegation, and the prior strike allegation.

       The court sentenced Gallardo to a total state prison term of 21 years 8 months.

The sentence consists of 12 years (double the upper term) for his count 1 robbery

conviction, two consecutive terms of 16 months (one-third the midterm, doubled) for his

convictions of counts 5 and 7, a concurrent term for count 6, a concurrent term for count

8, a consecutive term of five years for the prior serious felony true finding, and two



                                              3
consecutive one-year terms for two of the prison prior true findings. The court stayed

under section 654 the term for Gallardo's burglary conviction.

         The court sentenced Miller to the upper prison term of six years for his robbery

conviction and the upper term of six years for his burglary conviction, but stayed the

latter sentence under section 654. The court struck the finding on the section 12022.1

enhancement because the underlying offense resulted in a misdemeanor conviction rather

than a felony. As a result, the court sentenced Miller to a total state prison term of six

years.

         Contentions

         Miller and Gallardo contend their convictions of first degree robbery and first

degree burglary must be reversed because the court prejudicially erred in denying their

request that the court instruct the jury under CALCRIM No. 1863 on the claim-of-right

defense. Gallardo alone also contends his robbery and burglary convictions must be

reversed because the court abused its discretion under Evidence Code sections 352 and

1101, and violated his right to federal due process, by admitting irrelevent and prejudicial

evidence that he was in possession of a shotgun when he was found in a treehouse and

arrested in this matter. We affirm the judgments.

                                FACTUAL BACKGROUND

         A. The People's Case

         1. The September 2008 robbery

         Kevin Ross, the victim in this case, lived in Temecula and had an online business

selling used computer and electronics equipment. After arriving home in the evening on

                                               4
September 9, 2008, Ross heard someone at his front door. He opened the door to see

who was outside. Ross testified he went outside and spoke to two men, whom he

identified at trial as the defendants, who said they were Ross's neighbors. Ross told them

they were not his neighbors, asked them what they wanted, and then told them to leave

his property.

       When the men did not leave, Ross threatened to get a gun hoping this would scare

them away. As Ross tried to run back into his house, Gallardo and Miller rushed him and

threw him to the ground before he could close and lock the door. One of the men, who

Ross believed was Miller, placed a black semiautomatic handgun to his head while he

was face-down on the ground, causing a cut that bled down the side of Ross's head. The

defendants took Ross to his office.

       As Ross was on his knees, Miller pointed the gun at him and told him he (Ross)

had taken $28,000 "from somebody" and they were there to "take things" from Ross.

Ross, who was scared, replied he did not take any money, but they could take whatever

they wanted. Gallardo and Miller wanted to know where the valuables were, and Ross

pointed to a shelf underneath a television set where he had between $300 and $600. He

asked defendants not to hurt him. Miller began waiving the gun around, pointing it at a

computer and threatening to shoot Ross's dog.

       Defendants took the cash and a digital camera and started to leave. Miller told

Ross, "If you didn't take money from us, we will give you your stuff back." He also told

Ross in a threatening manner they would come back and kill him if he called the police.



                                            5
As the defendants left, they took Ross's car keys and wallet, which were on the kitchen

counter, as well as his cell phone and his car.

       Ross called the police. 1(2RT 165:7-9)! When the police arrived, they found Ross

frantic and scared and saw blood coming down the side of his face.

       2. The police investigation and the defendants' arrest

       Police investigators obtained Miller's fingerprints from Ross's front door and

office door. Police obtained the number of a cell phone belonging to Miller and, after

obtaining a search warrant, obtained phone records that showed a one-minute outgoing

call at 7:37 p.m. on September 9, 2008. Using information regarding the location of cell

towers in the area, it was determined the phone was located in the area of Ross's

residence at the time of the call. Miller had a contact named "Alex" listed in his cell

phone, which referred to Gallardo. Ross later identified Miller and Gallardo from

photographic lineups.

       Ross's vehicle was recovered a few weeks later. His wallet, cash, and camera

were not recovered.

       In late September 2008, about two weeks after the incident at Ross's home, Miller

was arrested at the Southwest Justice Center when he appeared there on another matter.

When interviewed by the police, Miller was told why he was under arrest. Miller did not

deny involvement, explained his name was "big on the fuckin['] streets," immediately

offered to work out a deal with the police, and wanted to talk about what he could do for

the sheriff's department in lieu of going to jail. With respect to the robbery, Miller said

"shit doesn't happen unless fuckin['] there's a reason for it," "people steal from other

                                              6
people," "somebody owed" someone money, "sometimes people fuckin['] want their

money back." Miller indicated he got Ross's name on a piece of paper from someone,

and he did it for money for his (Miller's) family because he was "dead broke."

       In early December 2008, SWAT officers served a search warrant on Gallardo's

parent's property in Lake Elsinore. They found and arrested Gallardo, who was hiding in

a treehouse on the property. Officers found a pistol-grip shotgun in the treehouse. When

interviewed by the police, Gallardo did not want to talk about the case. Gallardo

indicated he had knowledge of a robbery in Temecula and about what happened to the

victim, but he denied any involvement.

       3. The alleged theft from Murphy on June 22, 2008

       On June 22, 2008, about two-and-a-half months before the robbery of Ross, Ross

went with his mother to help her look for a house to purchase in the Temecula area. They

went to the home of a woman whose last name was Murphy, who was busy with her

children and told Ross and his mother to look around on their own. Ross and his mother

did so and then left after deciding they were not interested in purchasing the property.

       Shortly thereafter, Ross's mother received a call from Murphy, who accused her of

taking $28,000 from the house. Murphy called three more times and left messages

repeating her accusations. At trial, Ross denied he or his mother took any money.

During their investigation, the police found no evidence that Ross had stolen money from

Murphy. Murphy spoke with the police on the telephone at least six times and said she

believed Ross took $28,000 from her house. However, she canceled her in-person

interview with the police about an hour before she was to arrive at the police station and

                                             7
explained that her legal counsel advised her she should not speak any further to the

police.

          B. Defense

          Defendants presented no evidence.

                                         DISCUSSION

  I. FAILURE TO INSTRUCT SUA SPONTE ON THE CLAIM-OF-RIGHT DEFENSE

          Miller and Gallardo contend their convictions of first degree robbery and first

degree burglary must be reversed because the court prejudicially erred in denying their

request that the jury be instructed under CALCRIM No. 1863 on the claim-of-right

defense.2 We reject this contention.




2       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.] [¶] . . . [¶] 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. . . ." (Italics added.)

                                                8
       A. Background

       Following the close of evidence, Miller and Gallardo requested that the court

instruct the jury with CALCRIM No. 1863 (see fn. 2, ante) regarding the claim-of-right

defense. Gallardo's counsel asserted there was substantial evidence the defendants went

to Ross's house to obtain "their money – one or both of their money." Specifically,

counsel argued that during Ross's police interview, Ross told the police the defendants

told him that he (Ross) stole $28,000 from them and that defendants referred to the

money as theirs.

       Miller's counsel supported Gallardo's argument by relying on Ross's following

statement to the police as evidenced by the transcript of his police interview that was

admitted in evidence:3 "[A]nd then they started going on about how they were saying

that I had stolen [$28,000] from them and they were insistent on that and they said

where's the money? . . . [T]hey were insistent about the [$28,000]." Miller's counsel

also relied on evidence showing that Murphy had accused Ross and his mother of stealing

$28,000 and that defendants went to Ross's home to get the money back.

       The prosecutor opposed the defendants' request for a claim-of-right defense

instruction for several reasons. Acknowledging the evidence showed a woman named

Murphy had accused Ross of stealing $28,000 from her home, the prosecutor argued that

CALCRIM No. 1863 itself states that the claim-of-right defense does not apply to offset

or pay claims against the property owner of an undetermined or disputed amount. The



3      The recording of Ross's police interview was played for the jury.
                                             9
prosecutor noted that here the amount was disputed because defendants claimed Ross

owed $28,000, and Ross claimed he owed nothing. Noting that Murphy's statements to

the police were not admitted for the truth of the matter, the prosecutor indicated the

claim-of-right defense would apply if the evidence showed Murphy had gone into Ross's

house to reclaim $28,000 that she believed was stolen from her, but this was not the case

here. The prosecutor asserted that "sending two other individuals to do your dirty work

due to your mistaken belief does not qualify under Claim of Right."

       The court indicated it was not inclined to give the instruction on the claim-of-right

defense, stating that "there has to be evidence [Miller and Gallardo] actually have a claim

of right, which I interpret to be that they have some claim through ownership of that

money." The court noted that "the best evidence" supporting defendants' request for the

claim-of-right defense instruction was Ross's statement to the police that during the

incident defendants were saying he had stolen $28,000 from them. However, the court

stated that "every other piece of evidence in this case, including other portions of [Ross's]

interview" clearly showed Ross believed the defendants were "talking about $28,000

[Murphy] claimed was stolen from her." The court also noted the evidence was not clear

that the defendants were at Ross's home to collect the money and stated that they "could

have simply been there opportunistically, having found out about a theft." The court then

stated there was no substantial evidence to show the defendants "have [a] claim of right

or could ever assert a claim of right in this case."

       Indicating that a claim of right defense does not apply if the defendant attempted

to conceal the taking, the court stated that Miller and Gallardo both "denied that they

                                              10
were there" and, "[i]f [Ross] is to be believed, both of them . . . left the scene with items

they took" and "[t]hey never returned them[,] never displayed them to the police[,] and

never asserted claim of right to the police." The court again stated it "[did not] see

substantial evidence of a claim of right in this case."

       In response, Miller's counsel pointed to Ross's testimony that the "white person"

(Miller) told Ross, "If you didn't take money from us, we will give you your stuff back."

       Observing that "[i]t still sounds like [the defendants are] claiming they're agents,"

the court stated that a relationship between the defendants and Murphy had not been

established and, even if an agency relationship between Murphy and the defendants were

shown, "[y]ou can't have a claim of right as an agent." In response, the prosecutor argued

there was no evidence of agency and, even if there were such evidence, "the claim of

right defense [did] not apply to offset or pay claims of an undetermined or disputed

amount," and neither Murphy nor the defendants had a claim of right to Ross's wallet,

car, or camera. The prosecutor also stated that, even assuming agency applied, one

cannot properly claim that "'[y]ou stole $28,000, so we're going to take your $500.'"

       The court again indicated it was inclined not to give the claim-of-right defense

instruction, but stated it would reserve ruling to allow the parties to research whether

agency applies to a claim of right.

       The court later requested additional argument regarding defendants' request for the

claim-of-right defense instruction (CALCRIM No. 1863). The court stated that, although

the claim of right defense did not apply to the carjacking count, it was "leaning towards

giving the instruction" with respect to the robbery and burglary counts.

                                              11
       Citing People v. Tufunga (1999) 21 Cal.4th 935 (Tufunga), the prosecutor

responded that the claim-of-right defense did not apply to attempts to satisfy or collect a

debt or to attempts to recovery property on behalf of a third party based on agency. The

prosecutor stated "there [was] no evidence that [Ross] took money from [Miller] or

[Gallardo]." The prosecutor also argued the claim-of-right defense applied only to

specific property, and, where the theft was of money, the money had to be not only in the

same amount, it had to be the exact same currency as to which a claim of right was

asserted.

       1. Ruling

       The court agreed with the prosecution and denied defendants' request for a claim-

of-right defense instruction. Citing Tufunga, supra, 21 Cal.4th 935, the court stated that,

"when you have a claim of right to currency . . . , you can only recover the specific

currency to which you have the claim of right. Otherwise, the claim of right is not a valid

defense." The court found Ross's testimony was "the only testimony regarding the cash

that was taken," Ross "was very specific that this cash came from his business," and he

"denied taking any money from [Murphy]." Stating "if there is to be any claim-of-right

defense, . . . it would only apply to the cash," the court found "[t]here was no statement

by any defendant, either through [Ross] or in their interviews, that indicated they

believed they were taking the same money . . . for which they had had a claim of right."




                                             12
       B. Applicable Legal Principles

       1. Duty to instruct

       "It is settled that in criminal cases, even in the absence of a request, the trial court

must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury's understanding of the case." (People v. St. Martin (1970) 1 Cal.3d

524, 531.)

       The duty to instruct on general principles closely and openly connected with the

facts before the court also encompasses an obligation to instruct on an affirmative

defense, even in the absence of a request, "if it appears that the defendant is relying on

such a defense, or if there is substantial evidence supportive of such a defense and the

defense is not inconsistent with the defendant's theory of the case." (People v. Sedeno

(1974) 10 Cal.3d 703, 716, disapproved on another ground in People v. Flannel (1979)

25 Cal.3d 668, 684-685, fn. 12 & in People v. Breverman (1998) 19 Cal.4th 142, 164-

165; see also People v. Boyer (2006) 38 Cal.4th 412, 468-469.)

       "[T]he trial court need give a requested instruction concerning a defense only if

there is substantial evidence to support the defense." (People v. Miceli (2002) 104

Cal.App.4th 256, 267.) Substantial evidence is evidence that is sufficient to deserve the

jury's consideration; "'"'that is, evidence that a reasonable jury could find persuasive.'"'"

(People v. Benavides (2005) 35 Cal.4th 69, 102.) However, if the evidence supporting a

purported defense is too "minimal and insubstantial" to merit consideration by the jury,

                                              13
the trial court has no duty to instruct on the defense. (People v. Flannel, supra, 25 Cal.3d

at p. 684 & fn. 12, superseded by statute on another point as stated in In re Christian S.

(1994) 7 Cal.4th 768, 777.)

       2. Claim-of-right defense

       "An essential element of any theft crime is the specific intent to permanently

deprive the owner of his or her property." (People v. Williams (2009) 176 Cal.App.4th

1521, 1526 (Williams), citing People v. Avery (2002) 27 Cal.4th 49, 54–55.) "'"Although

an intent to steal may ordinarily be inferred when one person takes the property of

another, particularly if he takes it by force, proof of the existence of a state of mind

incompatible with an intent to steal precludes a finding of either theft or robbery. It has

long been the rule in this state and generally throughout the country 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."'" (Tufunga, supra, 21 Cal.4th at p. 943, quoting People v.

Barnett (1998) 17 Cal.4th 1044, 1142–1143 (Barnett), italics added.)

       In Tufunga, the California Supreme Court explained that "[t]he 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 felonious intent necessary

for conviction of theft or robbery." (Tufunga, supra, 21 Cal.4th at p. 938, italics added.)

Noting that "strong public policy considerations disfavor[] self-help through force or

                                               14
violence, including the forcible recapture of property" (ibid.), the Tufunga court stated

that the California Legislature "incorporated the common law claim-of-right doctrine into

the statutorily defined mens rea element of robbery when it codified that offense over 100

years ago" (id. at p. 953), and "consequently, we are not free to judicially abolish it and

thereby effectively expand the statutory definition of the crime." (Ibid.)

       However, "[i]n this state, limitations have been imposed on the availability of the

[claim-of-right] defense. For example, the defense is not permitted where the claimed

right to the property is rooted in a 'notoriously illegal' transaction." (Barnett, supra, 17

Cal.4th at p. 1144.) Also, "[i]n furtherance of the public policy discouraging the use of

forcible self-help" (Tufunga, supra, 21 Cal.4th at p. 950), the Supreme Court in Tufunga

held that the claim-of-right defense does not extend to "robberies perpetrated to satisfy,

settle or otherwise collect on a debt, liquidated or unliquidated─as opposed to forcible

takings intended to recover specific personal property in which the defendant in good

faith believes he has a bona fide claim of ownership or title." (Id. at p. 956, italics added;

see also People v. Fenderson (2010) 188 Cal.App.4th 625, 644, fn. 10.)

       "'[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.'" (Barnett, supra, 17 Cal.4th at p. 1145, italics

added, quoting People v. Romo (1990) 220 Cal.App.3d 514, 519, italics omitted.)




                                              15
       3. Standard of review

       On appeal, we review de novo a claim of instructional error (People v. Posey

(2004) 32 Cal.4th 193, 218), and we review the legal correctness of the court's ruling, not

the court's reasoning (People v. Zapien (1993) 4 Cal.4th 929, 976).

       C. Analysis

       In support of their claim that the court prejudicially erred in denying their request

for a jury instruction under CALCRIM No. 1863 on the claim-of-right defense,

defendants contend that (1) substantial evidence "fully supported" their claim-of-right

defense to the robbery and burglary charges, and (2) "[t]he argument that the [claim-of-

right] defense does not apply to items taken by a third person or agent of the owner of the

property . . . is unsupported by authority and makes no sense" in light of Williams, supra,

176 Cal.App.4th 1521 (discussed, post). These contentions are unavailing.

       As already discussed, subject to certain recognized exceptions, the claim-of-right

defense provides that a defendant's good faith belief─even if mistakenly held─that he or

she has a bona fide claim of right in the actual ownership of, or title to, property that he

or she takes from another person negates the felonious intent necessary for conviction of

theft or robbery. (See Tufunga, supra, 21 Cal.4th at pp. 938, 943, 948-949, 950;

CALCRIM No. 1863 (see fn. 2, ante).)

       Here, the record is devoid of substantial evidence from which a jury could

reasonably find either Miller or Gallardo had a good faith belief he had a bona fide claim

of right in the actual ownership of, or title to, the property they took from Ross, the

victim in this case. On appeal, defendants acknowledge the evidence "included the

                                              16
statements made by [Miller] during the robbery that . . . he and Gallardo were at Ross's

residence . . . because Ross had taken $28,000" from "someone." Ross did testify at trial

that, during the robbery, Miller "said he was there because I [(Ross)] took money" in the

amount of $28,000 "from somebody." Defendants also acknowledge the evidence shows

that, during his police interview, Miller stated that "people steal from other people";

"somebody owed" money to a "dude" whom Miller did not name; "sometimes people

fuckin['] want their money back;" he got Ross's name on a piece of paper from someone;

and he (Miller) did it for money because he was "dead broke." This evidence shows

Miller did not claim during his police interview that Ross had taken money from him or

Gallardo.

       Defendants also acknowledge the evidence shows Ross "had been contacted

several months earlier by a woman named Murphy, who owned property that he and his

mother had looked at, and who accused them of stealing $28,000 during that visit." Ross

testified to these facts at trial.4




4     As noted, ante, Ross denied he or his mother took any money from Murphy's
home.
                                             17
       Given the foregoing trial record and defendants' acknowledgments on appeal, we

conclude there is no substantial evidence from which a jury could reasonably find that

either Miller or Gallardo had a good faith belief he had a bona fide claim of right in the

actual ownership of, or title to, the property they took from Ross.

       In an effort to show they had a bona claim of right in the ownership of that

property, defendants selectively point to Ross's testimony that Miller told him during the

robbery, "[I]f [you] didn't take money from us, we will give you your stuff back." (Italics

added.) However, as already noted, if the evidence supporting a purported defense is too

minimal and insubstantial to merit consideration by the jury, the trial court has no duty to

instruct on the defense. (People v. Flannel, supra, 25 Cal.3d at p. 684 & fn. 12.) Here, in

light of the strong evidence establishing the claim of right to the property in question

belonged to Ross or Murphy, not Miller or Gallardo, we conclude the evidence of the

foregoing statement attributed to Miller was too minimal and insubstantial to merit

consideration by the jury and, thus, was insufficient to warrant the giving of an

instruction on the claim-of-right defense.

       Defendants alternatively claim they were entitled to a claim-of-right defense

instruction under CALCRIM No. 1863 because they only acted as agents of a third party.

Specifically, citing Williams, supra, 176 Cal.App.4th 1521, they urge this court to hold

that the claim-of-right defense extends to agents of a "putative" owner "just as it does to

accomplices." Defendants claim that "the fact [they] did not have a personal claim of



                                             18
right and instead acted as the agent of another"─Murphy─"does not justify the denial of

the [claim-of-right defense] instruction." We reject these claims.

          In Williams, the defendant was charged with robbery and burglary with a target

crime of larceny, and he was tried─and the jury was instructed─on the theory he aided

and abetted his brother in stealing a car and a laptop computer from his brother's former

girlfriend. (Williams, supra, 176 Cal.App.4th at pp. 1524, 1527-1528.) At trial, the

prosecution presented evidence that the defendant, his brother, and another man entered

an apartment where they found the former girlfriend. The defendant pulled out a

handgun when his brother directed him to do so, and the brother demanded that his

former girlfriend give him the laptop and the keys to the car, both of which she had

purchased. The brother took her keys, and either the defendant, his brother, or their

cohort drove away in the car, which contained the laptop. (Id. at p. 1525.) The defendant

testified the car belonged to his brother and denied possessing a gun during the incident.

(Ibid.)

          Concluding that the trial court committed harmless error by denying the

defendant's request for a jury instruction under CALCRIM No. 1863 regarding the claim-

of-right defense, the Court of Appeal in Williams affirmed the judgment, holding that "a

good faith belief by a defendant, tried as an accomplice, that he was assisting his

coprincipal retake the principal's property negates the 'felonious intent' element of both

larceny and robbery, and that an instruction on the claim-of-right defense must be given

where substantial evidence supports such a belief." (Williams, supra, 176 Cal.App.4th at

pp. 1528-1529.) Noting that to be liable as a principal on an aiding and abetting theory

                                              19
the accused must share the specific intent of the perpetrator, the Williams court explained

that "[i]t would defy logic and common sense to hold that a defendant who absconds with

goods by force under a good faith belief that he was repossessing his own property does

not thereby commit robbery, but that his accomplice, who assists him in the same act and

shares the same intent, may be found guilty. The latter, just as surely as the former, lacks

the specific intent to deprive another of his or her property." (Id. at p. 1528.)

       Williams provides a limited exception to the Tufunga rule that the claim-of-right

defense applies to takings intended to recover specific personal property in which the

defendant in good faith believes he or she has a bona fide claim of ownership or title to

the property. Under the Williams exception, a defendant who is charged with larceny or

robbery as an accomplice on an aiding-and-abetting theory that he or she assisted a

coprincipal retake the coprincipal's property, is entitled to have the jury instructed on the

claim-of-right defense when there is substantial evidence the defendant believed in good

faith that the property taken belonged to the coprincipal. (Williams, supra, 176

Cal.App.4th at pp. 1524, 1528-1529.)

       Miller and Gallardo's reliance on Williams is unavailing because that case has no

application here, and─in light of the strong public policy against forcible self-help─it

does not support the extension of the claim-of-right defense to defendants who claim to

be agents of putative third-party owners of property the defendants are accused of

stealing. Unlike the Williams defendant, Miller and Gallardo were not charged as

accomplices on a theory they aided and abetted a coprincipal who had a claim of right to

the property they took. Assuming for purposes of analysis that Murphy or some other

                                              20
third party had a claim of right to the property defendants took from Ross, and that

defendants acted as "agents" for that third party, any such claimant was not a coprincipal

in this case for the simple reason that Miller and Gallardo acted alone without an

accomplice. Unlike the Williams defendant─an accomplice whose alleged criminal

liability derived from the acts of his coprincipal (his brother) whom he aided and

abetted─Miller and Gallardo were tried and convicted not as aiders and abettors of a

coprincipal claiming to be the owner of the property they took, but as the actual

perpetrators of the burglary and robbery charged in this case. Thus, Williams is

distinguishable and has no application here.

       We also reject Miller and Gallardo's claim that Williams supports the extension of

the claim-of-right defense to defendants who claim to be agents of an "absent" third-party

who allegedly claims ownership of, or title to, property they are accused of stealing, and

who is not charged as a principal. In support of this claim, defendants assert "[t]here is

simply no qualitative difference between the intent of a person who aids and abets the

owner of property that is present at and participates in the robbery, and a person who

assists an absent owner in recovering that property."

       We are guided in our analysis by the California Supreme Court's holding and

reasoning in Tufunga, supra, 21 Cal.4th 935. In holding that the claim-of-right defense

does not extend to "robberies perpetrated to satisfy, settle or otherwise collect on a debt,

liquidated or unliquidated" (id. at p. 956), the Tufunga court reaffirmed that the claim-of-

right defense defense applies to "forcible takings intended to recover specific personal

property in which the defendant in good faith believes he has a bona fide claim of

                                             21
ownership or title." (Ibid.) However, in refusing to expand the scope of the claim-of-

right defense, the Supreme Court reasoned in part that an extension of that defense to a

defendant's forcible taking of property other than specific personal property in which the

defendant in good faith believes he or she personally has a bona fide claim of ownership

or title would be contrary to the "sound" public policy of discouraging the use of forcible

self-help. (Ibid.) Observing that "[t]he legitimacy of the need for our laws to discourage

forcible or violent self-help as a remedy seems beyond question" (id. at p. 953), the

Tufunga court explained the importance of this public policy in circumscribing the

availability of the claim-of-right defense:

          "'"It is a general principle that one who is or believes he is injured or
          deprived of what he is lawfully entitled to must apply to the state for
          help. Self-help is in conflict with the very idea of social order. It
          subjects the weaker to risk of the arbitrary will or mistaken belief of
          the stronger. Hence the law in general forbids it."'" (Id. at pp. 952-
          953, quoting Daluiso v. Boone (1969) 71 Cal.2d 484, 500.)

       The same strong public policy of discouraging forcible or violent self-help on

which the Tufunga court relied in refusing to extend the claim-of-right defense in that

case also precludes extension of that defense to defendants who have no right or claim of

ownership to property they are accused of stealing or attempting to steal, and who only

claim to be agents of a third party who allegedly has such a claim but was not a

coprincipal in the commission of the charged offenses.

       As the record conclusively shows neither Miller nor Gallardo had a bona fide

claim of ownership or title to the property they took from Ross, and in committing the

charged offenses they did not act in concert with a coprincipal who had such a claim, we


                                              22
conclude defendants were not entitled to a jury instruction under CALCRIM No. 1863

regarding the claim-of-right defense. Accordingly, we also conclude the court did not err

in refusing to give that instruction.

                  II. GALLARDO'S CLAIM OF EVIDENTIARY ERROR

       Gallardo separately contends his robbery and burglary convictions must be

reversed because the court abused its discretion under Evidence Code sections 352 and

1101 and violated his right to federal due process by admitting irrelevent and prejudicial

evidence that he was in possession of a shotgun when he was found in a treehouse and

arrested after the robbery incident. We reject this contention.

       A. Background

       Outside the presence of the jury and prior to the presentation of evidence at trial,

the court indicated Gallardo was contemplating pleading guilty to the charges involving

possession of a firearm (a shotgun), ammunition, drugs (methamphetamine), and drug

paraphernalia (counts 5-8). The court explained for the record its understanding of the

prosecutor's argument that, even if Gallardo pleaded guilty to these charges, evidence of

his possession of the shotgun in a treehouse at the time of his arrest─the basis for count

5─should be admitted because it was relevant to his state of mind in attempting to

conceal himself from the police when they were searching for him during their execution

of a search warrant.

       Gallardo's counsel argued the evidence concerning the shotgun should be excluded

because there was no connection between it and the charged robbery, the prosecution did



                                             23
not allege Gallardo brandished the weapon, and under Evidence Code section 352 the

prejudicial effect of the evidence substantially outweighed its probative value.

       The court reserved ruling until later, but indicated it seemed the fact Gallardo was

armed when he went into the treehouse to avoid detection by the police might tend to

show consciousness of guilt. In response, Gallardo's counsel acknowledged that

Gallardo's hiding in the treehouse after he heard the police searching for him might

indicate consciousness of guilt. Counsel asserted, however, that the prosecutor was

already getting evidence on consciousness of guilt based on Gallardo's attempt to flee by

going up into the treehouse. Counsel argued that the lack of evidence showing Gallardo

took the shotgun into the treehouse with him should be part of the court's Evidence Code

section 352 analysis as it diminished the probative value of the evidence relative to its

prejudicial effect.

       The court noted that the evidence was "definitely prejudicial," The court stated

that an ordinary citizen would be "significantly concern[ed]" by the evidence that

Gallardo was in a treehouse with a shotgun when the police arrived, and prejudice might

be an issue if Gallardo's "link" to those offenses was "very, very weak."

       Shortly thereafter, Gallardo's counsel indicated to the court that for strategic

reasons Gallardo would be pleading to the charge of possession of a firearm by a

prohibited person (former § 12021.1, subd. (a)) because an element of the offense was a

conviction of a prior violent felony, and counsel did not want the jury to learn of

Gallardo's prior conviction in deciding the current charges.



                                             24
       Later that day, the court revisited the issue. The prosecutor submitted on his

previous arguments that Gallardo's possession of the shotgun was relevant to the issue of

his state of mind in attempting to flee. Gallardo's counsel again asserted the evidence

should be excluded under Evidence Code section 352, stating he had "pretty much said

what [he thought] in terms of consciousness of guilt of having done a home-invasion

robbery months prior, having the gun up there without evidence that he brought it up

there with him or brought it because of the cops or something. I think its . . . probative

value is substantially outweighed by its prejudicial effect."

       The court ruled it would permit the prosecutor to introduce evidence concerning

the location of the shotgun in the treehouse. Gallardo subsequently pleaded guilty,

outside the presence of the jury, to unlawful possession of a firearm by a person

previously convicted of a qualifying felony, as charged in count 5, as well as to the

offenses charged in counts 6 through 8 (discussed, ante).

       During the trial, the prosecution presented evidence that a shotgun was found in

the treehouse where Gallardo was hiding when the SWAT team arrived to arrest him.

The prosecution also introduced two photographs of the shotgun recovered from the

treehouse.

       During his closing arguments, the prosecutor repeatedly referred to the evidence

showing the police found Gallardo hiding in a treehouse with a shotgun, arguing the

evidence established Gallardo was guilty of the charged crimes. For example, the

prosecutor argued, "Do innocent people go up and hide in the treehouse with

a . . . shotgun when the police show up to their property?" Shortly thereafter, the

                                             25
prosecutor argued that Gallardo "didn't come in and say, 'Why the heck is there a SWAT

team on my property?' Didn't come down and say, 'What's going on here? How can I

help you, sir? What's wrong here? Why are you doing this?' I'm an innocent man.' [¶]

No. A shotgun and a treehouse equals admission of guilt." During rebuttal the

prosecutor asked the jury, "Why hide up in a treehouse with a shotgun unless you're

guilty?"

       B. Applicable Legal Principles

       1. Evidence Code sections 350 and 210

       Evidence Code section 350 provides that only relevant evidence is admissible.

Evidence Code section 210 defines relevant evidence as "evidence, including evidence

relevant to the credibility of a witness or hearsay declarant, having any tendency in

reason to prove or disprove any disputed fact that is of consequence to the determination

of the action."

       2. Evidence Code section 1101

       Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a

person's character, including evidence of character in the form of specific instances of

uncharged misconduct, to prove the conduct of that person on a specified occasion."

(People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or

bad acts is inadmissible when it is offered to show that a defendant had the criminal

disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)

       Evidence Code section 1101, subdivision (b) "clarifies, however, that this rule

does not prohibit admission of evidence of uncharged misconduct when such evidence is

                                            26
relevant to establish some fact other than the person's character or disposition." (Ewoldt,

supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, that subdivision provides that

nothing in Evidence Code section 1101 "prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to prove some fact (such as

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an act." (Evid. Code,

§ 1101, subd. (b).)

       3. Evidence Code section 352

       If the trial court determines that uncharged misconduct is admissible under

Evidence Code section 1101, subdivision (b), it must then determine under Evidence

Code section 352 whether the probative value of the evidence is " 'substantially

outweighed by the probability that its admission [would] . . . create substantial danger of

undue prejudice, of confusing the issues, or of misleading the jury.' " (Ewoldt, supra, 7

Cal.4th at p. 404; Evid. Code, § 352.)

       The California Supreme Court has explained that "[t]he prejudice which exclusion

of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or

damage to a defense that naturally flows from relevant, highly probative evidence. '[All]

evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.

The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in

Evidence Code section 352 applies to evidence which uniquely tends to evoke an

emotional bias against the defendant as an individual and which has very little effect on



                                             27
the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous

with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)

       4. Due process

       "[T]he admission of evidence, even if erroneous under state law, results in a due

process violation only if it makes the trial fundamentally unfair." (People v. Partida

(2005) 37 Cal.4th 428, 439, italics omitted.)

       5. Standard of review

       "[A] trial court has broad discretion in determining the relevance of evidence"

(People v. Carter (2005) 36 Cal.4th 1114, 1166-1167), and we will not reverse the court's

ruling unless there is a clear abuse of discretion (People v. Waidla (2000) 22 Cal.4th 690,

717-718). We also review the trial court's rulings under Evidence Code sections 1101

and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

       Under the abuse-of-discretion standard of review, a trial court's exercise of

discretion in admitting or excluding evidence will not be disturbed, and reversal of the

judgment is not required, "except on a showing the trial court exercised its discretion in

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage

of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

       C. Analysis

       We reject Gallardo's claim of evidentiary error, and conclude reversal of his

robbery and burglary convictions is not required because (1) the court did not abuse its

discretion in admitting the challenged evidence showing Gallardo was in possession of a



                                            28
shotgun when he was found hiding in a treehouse and arrested after the robbery incident,

and (2) the admission of this evidence did not render his trial fundamentally unfair.

       First, we reject Gallardo's contention that the court abused its discretion in

admitting the challenged evidence because it was not relevant. We conclude the evidence

was relevant because it had some "tendency in reason to prove or disprove [a] disputed

fact that is of consequence to the determination of the action" (Evid. Code, § 210) as it

tended in some degree to show consciousness of guilt. In People v. Hall (1926) 199 Cal.

451, 460 (Hall), the California Supreme Court long ago explained that "[i]t is elementary

that the flight of a person after the commission of a crime, while not of itself sufficient to

establish guilt or to raise a presumption of guilt, is a circumstance to be considered by the

jury in connection with all the other facts and circumstances in the case as tending in

some degree to prove the consciousness of guilt, and evidence thereof is admissible . . . as

indicative of a guilty mind." (Italics added.) The Supreme Court also explained that "[i]t

is permissible, in proof of the fact of flight, to show all of the facts and circumstances

attending the flight either to increase or decrease, as the case may be, the probative force

of the fact of flight. In other words, when testimony as to flight is resorted to, it is proper

to show the extent of the flight and the circumstances thereof, including the acts and

doings of the defendant, which tend to characterize and increase its significance." (Ibid.)

In Hall, the Supreme Court held the trial court properly admitted evidence showing the

defendant possessed a sawed-off rifle and a box of cartridges as circumstances attending

the defendant's alleged flight. (Ibid., italics added.) Specifically, the Hall court held "[i]t

was . . . proper for the prosecution to show, as bearing upon this question, that the

                                              29
defendant had ammunition and firearms in his possession which were adapted to further

his flight and thereby accentuate the fact of flight. For this purpose the articles in

question were admissible in evidence." (Ibid.)

       Similarly here, evidence showing Gallardo possessed a shotgun while hiding in a

treehouse as the police were searching for him was relevant as a circumstance attending

his alleged flight because it tended both to increase the probative force of such flight and

to show consciousness of guilt. (See Hall, supra, 199 Cal. at p. 460.)

       Gallardo acknowledges that "[t]he fact [he] retreated to the treehouse when the

SWAT team arrived to arrest him was arguably relevant to the issue of his consciousness

of guilt for the charged offenses." He also acknowledges "the presence of the shotgun in

the treehouse was a circumstance surrounding his arrest." He claims, however, that "[h]is

consciousness of guilt . . . was adequately shown by evidence that he was found hiding in

a treehouse after 42 members of the SWAT team had been searching his property for 30

minutes." However, as we have already concluded, the evidence of Gallardo's

possession of the shotgun in the treehouse was relevant as a circumstance attending his

alleged flight.

       Citing People v. Henderson (1976) 58 Cal.App.3d 349, 360, Gallardo also asserts

the presence of the shotgun "was not relevant to his consciousness of guilt as he did not

use it in an effort to avoid apprehension." Specifically, he asserts the evidence is not

relevant because "[he] did not threaten the officers with the gun or brandish it." Gallardo

cites no authority, and we are aware of none, to support the proposition that evidence of a

defendant's possession of a weapon as a circumstance attending his alleged flight is not

                                              30
relevant to show consciousness of guilt unless the evidence also shows the defendant

"threaten[ed] the officers with the gun or brandish[ed] it" during such flight. Gallardo's

reliance on Henderson is unavailing as that case did not involve admission of evidence

the defendant possessed a gun as a circumstance attending an alleged flight and showing

consciousness of guilt.

       Second, we reject Gallardo's contention that the court abused its discretion in

admitting the challenged evidence because "the evidence concerning the shotgun was

inadmissible under [Evidence Code] section 1101 [as] it amounted merely to evidence of

[his] character or propensity for possessing deadly weapons." As already discussed,

nothing in Evidence Code section 1101 "prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to prove some fact . . . other

than his . . . disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) Here,

the challenged evidence was relevant to prove some fact other than Gallardo's "character

or propensity for possessing deadly weapons." We have already concluded the evidence

was relevant because it was evidence of an attendant circumstance of Gallardo's alleged

flight that tended to show consciousness of guilt. (See Hall, supra, 199 Cal. at p. 460.)

       Third, we reject Gallardo's contention that the court abused its discretion under

Evidence Code section 352 in admitting the challenged evidence because "[t]he shotgun

evidence had little, if any probative value given the other evidence the prosecution had to

show consciousness of guilt," and it was "more prejudicial than probative" because it

tended to invoke an emotional bias against him with little effect on the issues. The

evidence was probative of Gallardo's state of mind because it tended to show

                                            31
consciousness of guilt during an attempt to hide from police officers searching for him,

and it was not unduly prejudicial because the jury heard properly admitted testimony that

Miller placed a semiautomatic handgun to Ross's head after he and Gallardo rushed him

and threw him to the ground.

       Last, we conclude the admission of the challenged evidence did not render

Gallardo's trial fundamentally unfair as the evidence of his guilt (discussed, ante, in the

factual background) was very strong. Gallardo's reliance on McKinney v. Rees (9th Cir.

1993) 993 F.2d 1378 is unavailing. In McKinney, the court held that evidence of the

defendant's possession of a knife that could not have been used to commit the murder

charged in that case was prejudicial because it only served "to prey on the emotions of

the jury" (id. at p. 1385) in a solely circumstantial evidence case. Gallardo's reliance on

McKinney is unavailing because Ninth Circuit authority is not binding on this court (see

People v. Bradford (1997) 15 Cal.4th 1229, 1292), and McKinney is factually

distinguishable because it did not involve admission of relevant evidence of a defendant's

flight or consciousness of guilt.

       For all of the foregoing reasons, we conclude the court did not abuse its discretion

in admitting the challenged evidence, and the admission of the evidence did not render

Gallardo's trial fundamentally unfair.




                                             32
                                   DISPOSITION

     The judgments are affirmed.


                                                 NARES, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




                                       33
