crime>.”
Defendant first contends there is substantial evidence he did not believe he was
stealing tires because he knew he was being videotaped and he thought the tires were
abandoned. His friend, Mitchell, offered the same opinions in her testimony. Therefore,
defendant maintains the trial court should have given a claim-of-right instruction sua
sponte because “‘“a bona fide belief, even though mistakenly held, that one has a right or
claim to the property negates 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.”’” (People v. Tufunga (1999) 21 Cal.4th 935, 943, citing People v. Barnett
(1998) 17 Cal.4th 1044, 1142-1143.) A mistaken but good faith belief that property has
6 been abandoned can establish a claim of right. (People v. Russell (2006) 144 Cal.App.4th
1415, 1429-1431.)
If the defense is not inconsistent with the defendant’s theory of the case, the trial
court must instruct sua sponte on the defense. (People v. Russell, supra, 144 Cal.App.4th
at pp. 1429-1430.) In Russell, the Court of Appeal found sufficient evidence supported
the claim-of-right instruction, where the defendant had stated repeatedly he had thought a
motorcycle had been abandoned, and many other facts supported that belief such as the
condition and location of the motorcycle. (Russell, at p. 1430.)
“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.’” (People v. Salas (2006) 37 Cal.4th 967, 982, quoting People v. Jones (2003)
112 Cal.App.4th 341, 351.) The trial court, however, is not required to instruct on a
claim-of-right defense unless there is substantial evidence to support an inference that the
defendant acted with a subjective belief that he had a lawful claim on the property.
(People v. Tufunga, supra, 21 Cal.4th at p. 944.)
No substantial evidence was presented here. The claim-of-right defense is not
available when a defendant tries to conceal his actions or knows they are illegal. (People
v. Wooten (1996) 44 Cal.App.4th 1834, 1849; CALCRIM No. 1863.) Although both
defendant and Mitchell claimed they thought they could take the tires and dolly legally,
other facts made their claim completely unreasonable. The tires and dolly were located
7 in locked or closed structures and on private property. Defendant did not ask the stores
for permission to remove the tires and dolly. Instead, he visited the stores at night, after
hours, and, in the January 2011 incident, he cut the padlock to gain access to the tires.
When the police stopped defendant during the July 2011 incident, he was nervous and
agitated and lied about obtaining the tires from someone named Victor. Although
defense counsel tried to argue that defendant was engaged in the equivalent of “dumpster
diving,” defendant had been convicted of a similar offense in 2003, undercutting his
contention that he believed he was not stealing. He also knew what he was doing was
illegal because he had been arrested for the same activity six months earlier in January
2011.3 In view of all these facts, defendant’s belief was entirely implausible and not in
good faith; there was not substantial evidence to support the instruction.
Furthermore, any error in not giving the instruction was harmless because a more
favorable result was not reasonably probable. (People v. Watson (1956) 46 Cal.2d 818,
835-836; People v. Russell, supra, 144 Cal.App.4th at pp. 1431-1432, citing People v.
Breverman (1998) 19 Cal.4th 142, 178.) Defendant argues that, if the jury had found
defendant held a good faith belief that the tires were being left out to be taken by a person
like himself and even if it found that belief unreasonable, the finding would negate the
larcenous intent required for theft and burglary, as well as the prosecution’s argument
3 When he was arrested for the second offense on July 9, 2011, his trial on the first offense was set for July 25, 2011.
8 that there was no reasonable explanation for defendant’s conduct. Defendant protests
that the trial court’s failure to instruct the jury on the claim-of-right defense deprived him
of his right to offer a defense and impaired his right to have the offense proved beyond a
reasonable doubt, violating due process. (Bradley v. Duncan (2002) 315 F.3d 1091,
1098-1099; Estelle v. McGuire (1991) 502 U.S. 62, 72.) However, as already discussed,
the overwhelming evidence against defendant means there was no reasonable probability
of a more favorable outcome. (Russell, at p. 1432.) The error was also harmless beyond
a reasonable doubt. (People v. Williams (2009) 176 Cal.App.4th 1521, 1530-1531.)
Even if the instruction had been given, the jury would still have convicted defendant who
knew what he was doing was unlawful but lied about it.
IV
EXCLUSION OF KEY WITNESS
Defendant next contends the trial court erred by not allowing Oni Avila to testify
about industry practices involving tire disposal. Defense counsel described Avila’s
proposed testimony as follows: “[H]e’s a tire shop owner. His testimony has several
[facets]. First, he’s going to talk about standards in the tire industry, leaving these used
tires out for people to collect. He’s going to talk about his dealings with Mr. Yancey
through his tire business, not as a character reference but rather as a percipient witness to
businesses that have been conducting – he’s going to talk about pricing, evaluations of
tires” and “Mr. Avila will testify he leaves tires out. That in his experience in the
industry that they leave tires out because then they don’t have to pay the hazardous waste
9 fees.” The trial court ruled that Avila’s testimony would not be relevant because
Richardson testified that he did not leave out used tires to be collected but placed them in
a locked storage unit for proper disposal as hazardous waste.
Defendant contends he should have been allowed to impeach Richardson’s
testimony about storing used tires by using Avila’s testimony about industry practice.
(People v. Lang (1989) 49 Cal.3d 991, 1017; Evid. Code, § 780, subd. (i).) Additionally,
if the jury heard evidence that it was standard industry practice to leave tires out to be
taken by anyone passing by, the jury could have accepted defendant’s explanation that he
thought the tires had been abandoned. Thus, defendant maintains the trial court was
wrong to decide the proffered evidence was not relevant to disprove a “disputed fact that
is of consequence to the determination of the action” (Evid. Code, § 210) and the trial
court violated California law and the federal constitutional right to present a defense.
(Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.)
“A trial court’s exercise of discretion in admitting or excluding evidence is
reviewable for abuse [citation] and will not be disturbed 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.) In this case, it is defendant’s argument that borders on patent absurdity. The
question of industry practice is not an issue in this case. The two tire stores did not leave
their tires out to be collected by defendant or anyone else. Richardson kept his tires,
which were meant to be returned to the manufacturer, in a locked storage facility.
10 Defendant had to trespass on the store’s property at night and cut the lock in order to
“collect” the tires. Similarly, defendant entered the premises of Big O Tires at night and
removed the tires from a latched structure, as well as taking the dolly which was being
stored on the property. Even if Avila had testified it was industry practice to abandon
tires for collection (apparently to dodge procedures and fees for the disposal of hazardous
waste), that testimony would not be relevant here in which the two tire stores
undisputedly did not engage in such a questionable practice. Even if defendant may have
intended to take tires which had been left out for collection, he could not plausibly claim
he intended to collect tires that had been locked away or stored on private premises. The
trial court certainly did not abuse its discretion in excluding Avila’s testimony.
For the same reasons, there was not a reasonable chance of a different outcome if
Avila had testified about industry practices. It is simply impossible to credit defendant’s
claim that he believed he obtained the tires legitimately when he had to break into a
locked unit to do so, when he had been previously convicted in 2003, and when he had
been arrested in January 2011 before committing additional crimes in July 2011. Any
error was harmless whatever the standard of review.
V
DEFENDANT’S BRAIN INJURY
Defense counsel attempted to cross-examine Deputy Dickey about defendant’s
brain injury, which he sustained during a 2008 carjacking and which affected his ability
to communicate, causing stuttering and confusion. The court sustained the prosecution’s
11 objections based on relevance. The court also sustained objections to asking Mitchell
about defendant’s mental state.4 On appeal, defendant argues evidence of defendant’s
alleged mental disability by a lay witness was relevant and admissible on the issue of
intent. (§ 28, subd. (a); People v. Coddington (2000) 23 Cal.4th 529, 582-583, overruled
on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046; People v. Gurule
(2002) 28 Cal.4th 557, 621; People v. DeSantis (1992) 2 Cal.4th 1198, 1127; In re
Marriage of Teegarden (1986) 181 Cal.App.3d 401, 409.) Again we review the trial
court’s broad decision to admit or exclude evidence for abuse of discretion. (People v.
Horning (2004) 34 Cal.4th 871, 901; People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10;
People v. Cortes (2011) 192 Cal.App.4th 873, 908.)
Section 28, subdivision (a), makes “[e]vidence of mental disease, mental defect, or
mental disorder . . . admissible solely on the issue of whether or not the accused actually
formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.” In the absence of expert
testimony, lay witness testimony concerning the defendant’s mental condition is
inadmissible. (People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117.) Section 29
restricts expert testimony regarding a defendant’s mental state; an expert may not testify
“whether the defendant had or did not have the required mental states” including intent
4 Defendant’s related argument involving Avila as a lay witness was not raised below.
12 which “shall be decided by the trier of fact.” Thus, under sections 28 and 29, only
evidence of a defendant’s actual mental state when he committed a specific intent crime
is admissible to show whether he had specific intent to commit the crime. Evidence to
show he did not have the capacity to form such intent is inadmissible and his intent is an
ultimate fact reserved to the jury’s exclusive determination.
Here, the trial court properly exercised its discretion in excluding proffered
testimony about defendant being easily confused because he purportedly sustained a
brain injury in 2008. The defense had not presented any expert testimony about
defendant’s alleged mental disability. Without any expert testimony, neither Investigator
Dickey nor Mitchell could testify that defendant in fact sustained a brain injury or that he
was easily confused. (See People v. Moore, supra, 96 Cal.App.4th at pp. 1116-1117.)
Furthermore, their general observations had no bearing on defendant’s intent at the time
he committed the instant offenses when the witnesses were not present.
The four cases cited by defendant are factually and legally distinguishable. In In
re Marriage of Teegarden, supra, 181 Cal.App.3d 401, a husband receiving disability for
lupus did not present any expert testimony relating to his diagnosis. Instead, his caretaker
described the husband’s physical disabilities. (Id. at pp. 407-409.) The trial court
concluded that the husband had not met his burden of proving his need for spousal
support. (Id. at p. 405.) The Court of Appeal reversed the portion of the interlocutory
judgment denying the husband an award of spousal support, finding that expert testimony
was not required to conclude from the evidence that the husband’s ability to support
13 himself had been severely compromised. (Id. at p. 409.) Whereas lay testimony about
the husband’s illness was relevant to the award of spousal support in Teegarden,
proffered testimony about defendant here being confused was irrelevant because it had no
connection with defendant’s intent at the time he was stealing the tires.
In People v. Webb (1956) 143 Cal.App.2d 402, the trial court permitted a
psychiatrist’s opinion of the defendant’s mental state and his ability to form specific
intent. The court also permitted lay witnesses to testify about objective manifestations of
defendant’s tenseness and emotional disturbance but excluded lay opinion that
defendant’s mind was so affected during a killing that he could not have formed a
specific intent. The Court of Appeal held it was error to exclude the lay opinion
evidence. (Id. at p. 410.) In this case, however, the defense did not offer any expert
testimony about defendant’s mental state. General observations about his state of mind
had no bearing on his intent during the crimes.
In People v. DeSantis, supra, 2 Cal.4th 1198, the trial court ruled the defendant
could not admit the accomplice’s own statement that the accomplice “had trouble
remembering things ‘because of his brain cells’” to show the accomplice recognized that
his own memory was impaired. (Id. at pp. 1227-1228.) The trial court, however, allowed
expert testimony about the accomplice’s cognitive shortcomings. The California
Supreme Court held the trial court erred in excluding the accomplice’s statement about
his memory problems which was relevant to his present cognitive difficulties. The error
was harmless in view of the admission of a psychiatrist’s expert testimony that the
14 accomplice suffered from a borderline personality disorder, affecting his memory and
perception, and (2) the accomplice had testified repeatedly that he could not recall
various events. (Id. at pp. 1227-1228.) DeSantis is readily distinguishable because
general observations about defendant’s confusion were not relevant to the issue of his
mental state at the time he committed the crimes. DeSantis also involved expert
testimony not admitted in this case.
In People v. Gurule, supra, 28 Cal.4th 557, defendant claimed a police sergeant
usurped the role of a psychiatric expert when the sergeant was permitted to answer the
prosecutor’s question about whether the sergeant had observed any delusional or
hallucinatory speech or conduct on the part of an accomplice. The California Supreme
Court found no error in allowing the sergeant to testify the accomplice did not appear
distracted or hesitant during the interview and was responsive to questions. (Id. at pp.
620-621.) A layperson’s observations of a witness’s behavior “is relevant to the overall
question of the witness’s mental state.” (Id. at p. 621.) Unlike defendant Gurule,
observations about defendant’s confusion because of a 2008 brain injury had no
connection to his intent at the time of the instant crimes.
In summary, the trial court did not abuse its discretion in precluding two lay
witnesses from testifying about their observations of defendant’s mental condition. Even
if the trial court erred, it is not reasonably probable that defendant would have achieved a
more favorable outcome. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; People v.
Watson, supra, 46 Cal.2d at pp. 835-836.) The evidence left no doubt that defendant
15 knew he was committing a crime when he broke into the locked or closed structures that
contained used tires and removed those tires. Any evidentiary error was harmless under
any standard of review.
VI
THE UPPER-TERM SENTENCE
Defendant contends the trial court violated his rights under the Sixth Amendment
and section 1170, subdivision (b), by sentencing him to the upper term without expressly
stating the reasons on the record and by using his criminal record to impose the upper
term, as well as the one-year enhancements for his prior prison term convictions under
section 667.5, subdivision (b), the two-year enhancement under section 12022.1, and the
increased felony liability for the theft offenses in counts 2 and 4. Defendant’s arguments
are without merit because the court lawfully imposed both the upper term and the
sentencing enhancements.
At the sentencing hearing, the trial court denied probation and sentenced defendant
to a term of eight years eight months in county jail, with five years eight months under
mandatory supervision by the county probation officer pursuant to section 1170,
subdivision (h). The court imposed the upper term of three years on count 1, which was
deemed the principal count; a consecutive term of eight months (one-third of the middle
term of two years) on count 3; a consecutive term of two years for the section 12022.1
enhancement on count 4; and, three consecutive one-year terms for the three prior prison
term convictions. The court imposed the middle term of two years as to count 2 and a
16 term of eight months (one-third of the middle term of two years) as to count 4 and stayed
the punishment pursuant to section 654.
The trial court based its sentence on defendant’s extensive criminal record but also
explained the blended sentence would allow defendant to serve three years in jail and
receive the benefit of supervised release for the remaining five years and three months.
“A trial court’s decision to impose a particular sentence is reviewed for abuse of
discretion and will not be disturbed on appeal ‘unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.’” (People v. Jones (2009) 178
Cal.App.4th 853, 860, citing People v. Carmony (2004) 33 Cal.4th 367, 377.) The party
challenging the sentence has the burden to show it was irrational or arbitrary. Otherwise,
we presume the trial court acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review. A sentence will not be reversed because reasonable people might disagree. The
appellate court does not substitute its judgment for the trial court’s judgment. (Jones,
supra, 178 Cal.App.4th at p. 861, and Carmony, at pp. 376-377.) An appellate court will
set aside the sentence only if it is reasonably probable that the trial court would have
chosen a lesser sentence if it had known that some of its reasons were improper. (Jones,
at p. 861, citing People v. Price (1991) 1 Cal.4th 324, 492.)
The trial court shall order a middle term unless there are aggravating or mitigating
circumstances; “[t]he court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of law. . . .” (§ 1170,
17 subd. (b).) In addition, when a court imposes a sentence for a felony pursuant to section
1170, the court must also impose, in addition and consecutive to the offense of which the
person has been convicted, the additional terms provided for any applicable
enhancements. (§ 1170, subd. (d).)
Even if defendant did not forfeit his claims of sentencing error, the trial court
adequately stated its justification for imposing an upper term. The record demonstrates
that the court selected the upper term in light of defendant’s extensive criminal record.
Defendant’s lengthy criminal history began on February 25, 2002, when he was
convicted of first degree burglary. His record continues with convictions for
unauthorized possession of a controlled substance (felony, July 23, 2003); grand theft
(felony, July 23, 2003); burglary (felony, September 8, 2004); being under the influence
of a controlled substance (misdemeanor, August 14, 2006); driving with a revoked or
suspended license (misdemeanor, September 28, 2006); petty theft with a prior theft-
related conviction (felony, March 2, 2007); driving with a revoked or suspended license
(misdemeanor, August 21, 2009); driving with a revoked or suspended license
(misdemeanor, April 11, 2010); and, driving with a revoked or suspended license
(misdemeanor, September 29, 2010). Defendant performed poorly on probation and
parole and rotated in and out prison and jail. These facts provided an ample basis for
imposing the upper term.
The trial court also properly applied the sentencing enhancements. The amended
information alleged three convictions on three different dates: petty theft with a prior
18 theft-related conviction (March 2, 2007); burglary (September 8, 2004); and, possession
of a controlled substance (July 23, 2003). The trial court imposed three consecutive one-
year terms for these prior prison convictions under section 667.5, subdivision (b). As
described above, the court relied on defendant’s extensive criminal history in imposing
the upper term. Defendant’s criminal history consisted of 10 convictions. Even without
the three prior convictions listed in the amended information, seven convictions remained
as a basis for the upper term. Thus, the trial court did not abuse its discretion when it
imposed both the upper term on count 1 and the sentence enhancements.
VII
DISPOSITION
The trial court did not commit instructional, evidentiary, or sentencing error. We
affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.