APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M. Earl, Judge. Affirmed. (Super. Ct. No. 07F09223).
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PUBLICATION
Defendant Anthony Williams was charged with burglary (Pen. Code, § 459)*fn1 and robbery (§ 211), with special allegations that he personally used a firearm (§ 12022.53, subd. (b)) in the commission of the offenses. The jury convicted him of burglary and found the gun allegation to be true, but acquitted him of the robbery.*fn2
Sentenced to an aggregate term of eight years in state prison, defendant appeals. The issue in this case is whether a defendant charged with burglary on an aiding and abetting theory with a target crime of larceny, is entitled to have the jury instructed on the claim-of-right defense, where there is substantial evidence that the defendant, in good faith, believed the property taken from the victim belonged to his co-principal.
We agree with defendant that the trial court erred in refusing a claim-of-right instruction, but find the error to be harmless. Thus, we shall affirm the judgment.
On the evening of August 27, 2007, Marlene Ayers (Marlene) and her three female cousins, including Johneshia Daniels, were all gathered at Daniels‟s apartment in Rio Linda. Around 10:00 p.m. there was a knock on the door. Marlene asked, "Who is it?" and defendant answered, "Anthony." When Marlene opened the door, she saw defendant, his brother Kendall Williams (Kendall), who was Marlene‟s ex-boyfriend, and Kivon Holmes.*fn3 Marlene tried to shut the door, but defendant pushed it open. Defendant and Kendall entered the room, while Holmes stood in the doorway.
Kendall directed defendant to pull out his gun. Defendant reached into his waistband, pulled out a handgun and began waving it around. Addressing Marlene, defendant said, "You thought this was a game" and "Bitch, you stole my brother‟s car." Kendall said "Where‟s my shit?" and demanded that Marlene surrender the car keys and a laptop computer. Marlene directed Kendall to the car keys and told him the laptop was in the car. Kendall grabbed the keys and the men left. As he departed, defendant said, "Have a nice day." One of the three men drove away in Marlene‟s 1996 Aurora, which contained her laptop computer, as well as miscellaneous personal items.
Marlene testified that she and Kendall had lived together and dated intermittently until the beginning of August 2007, when they had an acrimonious break-up. She stated that she bought the Aurora from a third party, using Kendall as an intermediary. She admitted that Kendall tendered the purchase price to the seller and drove the car home, but insisted the car was purchased with her money. She acknowledged that the paperwork was still in the name of the seller, but explained that it was because neither she nor Kendall had a driver‟s license. She purchased the laptop at Best Buy with money received as a birthday present, although Kendall occasionally used it.
Defendant testified that the Aurora belonged to his brother Kendall and that he was present when Kendall purchased it. After Kendall and Marlene broke up, he and Holmes agreed to accompany Kendall to the apartment where Marlene was staying, in order to get the car back.
Defendant testified that he knocked on the door, and when Marlene asked who it was, he said, "Anthony." According to defendant, Marlene opened the door and "jumped back," allowing the men to enter the room unimpeded. Kendall demanded the keys to his car and his laptop. Marlene surrendered the keys and told him that his laptop was in the car. Defendant denied either owning or possessing a gun that evening, remarking "We didn‟t feel we needed a gun to go get our own property from some females." Defendant testified that he was the one who drove the Aurora away from Daniels‟s apartment.
Dierre Hudson, the registered owner of the Aurora, testified that he sold the car to Kendall. He produced a bill of sale, signed by him and Kendall. Admitting that Kendall was a friend of his, Hudson stated that he held back the pink slip because Kendall still owed him some money on the car.
Prior to trial, the prosecutor moved in limine to preclude defendant from asserting a claim-of-right defense, contending that that defense has never been extended to a defendant who aids and abets another in retrieving the other person‟s property. In support of this position, the prosecutor cited People v. Hargrove, a case from this district that was ordered depublished by the California Supreme Court. (People v. Hargrove (Feb. 19, 2002, C032547) review den. and opn. ...