Opinion
E067015
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. KRISTEN ALISA FIGUEROA, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1404473) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Kristen Alisa Figueroa of grand theft. (Pen. Code, § 487, subd. (a).) The trial court granted defendant formal probation for a period of three years, with the condition that she serve 270 days in the custody of the Riverside County Sheriff's Department.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises nine issues on appeal. First, defendant contends the trial court erred by admitting evidence that the theft was motivated by defendant's drug abuse. Second, in the alternative, if the foregoing issue was forfeited, then defendant's trial counsel was ineffective. Third, defendant asserts the trial court erred by not permitting defendant to show her arms to the jury to rebut the evidence that she abused drugs.
Fourth, defendant contends the trial court erred by instructing the jury that it could use the drug abuse evidence when evaluating defendant's credibility. (CALCRIM No. 316.) Fifth, in the alternative, defendant asserts her trial counsel was ineffective for not objecting to CALCRIM Nos. 105 and 226. Sixth, defendant contends the trial court erred by instructing the jury that it could find defendant guilty of theft if she intended a temporary taking. Seventh, defendant contends the trial court erred by instructing the jury that it is not a defense to theft that defendant intended, at the time of the taking, to repay the money. Eighth, defendant contends the trial court erred by excluding evidence of defendant's attempt to repay the money. Ninth, defendant asserts the cumulative effect of the foregoing alleged errors requires her conviction be reversed. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION'S CASE
Steven Figueroa (Father) is defendant's father. Father lived with his other daughter, Andrea Vargas (Vargas), in his home. Father had a heart condition. In July 2012, Father "had a six-bypass." In April 2013, Father suffered a heart attack. Vargas moved out of Father's house. Approximately one week later, in April 2013, defendant and her two children moved into Father's house due to defendant's husband (Husband) abusing and violently raping defendant. In April 2013, defendant did not have a job. Father paid for food and clothes for defendant and defendant's children. Father provided the money or goods to defendant; defendant did not have permission to take money or credit cards from Father's wallet.
Father had a safe in his bedroom closet. The safe opened with a key or via a combination lock. Father only used the key to open the safe. There were two keys for the safe. One key was kept in the back of a dresser drawer, such that the drawer would have to be removed from the dresser to access the key. The second key was in a desk drawer with other keys—it was not marked as the safe key. In April 2013, there was $20,000 in cash in the safe along with important documents. The money in the safe was to be used for Father's burial expenses and/or business expenses.
Father did not tell defendant about the safe until June 2014, when he began having more heart issues. Father told defendant there were important documents and money in the safe. Defendant responded to the information by saying, " 'Okay.' " Father did not tell defendant where to find the keys for the safe and did not give her permission to take anything from the safe. On July 31, 2014, Father checked the contents of the safe and all the items were accounted for.
In late September 2014, Father was informed that he needed to go to the hospital for an emergency angioplasty. Father believed he was dying. Defendant and Vargas helped Father draft a will. Father told defendant that, upon his death, she could use the money from the safe to pay the mortgage, utility bills, and Father's burial expenses. Defendant responded, " 'I understand, dad.' " After Vargas left, Father showed defendant where to find the key that was located behind the dresser drawer, and showed her how to open the safe. Father did not tell defendant about the key in the desk drawer.
Father, defendant, and defendant's children were the only people living in Father's house, and no one else had keys to the house. Before going to the hospital, Father counted the money in the safe, and the entire $20,000 was accounted for. In late September, Father had the angioplasty and stayed in the hospital for 24 hours after the procedure.
In late October, Father had $500 to add to the money in the safe. Father looked for the safe key behind the dresser drawer, but the key was not there. Father used the key from the desk drawer to open the safe. When Father open the safe, he discovered the $20,000 cash was missing from the safe. Father yelled to defendant, " 'What's happened? What's happened?' " Defendant admitted, " 'I took it. You can hit me. I deserve it.' " Defendant cried. Father told defendant she needed help. Father asked why defendant took the money. Defendant did not offer an explanation. Father left, because he feared he would suffer a heart attack if he stayed in the house.
Father returned to the house after a couple hours, and defendant was gone. Defendant's children walked home from elementary school. Father called defendant, but she did not respond. Father called relatives, but they had not seen defendant. Four or five days later, Husband told Father that defendant was with Husband.
Defendant had abused drugs for periods of time since the age of 13 or 14 years old. By the time defendant was in her late 20s, Father saw defendant with marijuana, and Father saw needle marks on defendant's arms and legs. Father argued with defendant about her drug abuse. After moving into Father's house in April 2013, defendant admitted to Father that she smoked marijuana. Defendant also admitted abusing methamphetamines on a recreational basis.
Father's girlfriend knew the location of the safe at Father's house and occasionally stayed overnight at his house. However, Father's girlfriend did not know the locations of the keys for the safe. Father did not tell Vargas the locations of the keys for the safe. Vargas confirmed that she knew of the safe, but never saw it, and did not know where the keys were located.
Riverside Police Officer Galbreath examined the safe on November 11, 2014. There was nothing indicating the safe had been damaged or broken. When searching defendant's bedroom, Galbreath found paystubs from an exotic dancing club.
B. DEFENSE CASE
Defendant testified at trial. Defendant was 32 years old in 2016. While living with Father, defendant attended cosmetology school. Defendant assisted Father by feeding him, driving him places, cleaning the house, and sleeping on the floor in his bedroom in case he needed to be resuscitated.
In late June 2013, Father told defendant he had money in the safe and that she could take money from the safe for food, clothes, gasoline, and school expenses for herself and the children. Defendant used the key in the desk drawer to access the safe; Father never told defendant about a second key in the dresser. Every time defendant needed money, which was several times per week, she obtained Father's permission to access the safe; however, she also had permission to access the safe at any time. Defendant estimated she took $4,000 to $7,000 from the safe for living and school expenses. There was no agreement concerning defendant paying Father back for the money, but she intended to do so once she obtained employment.
In September 2014, when defendant and Vargas helped Father draft his will, Father told defendant and Vargas where to find a key for the safe; however, defendant also testified that Vargas was unaware of the safe and unaware there was a key for the safe. In late October 2014, when Father discovered the money was missing from the safe, he yelled for defendant. Defendant went to Father's bedroom, and he asked her to double-check the safe to see if there was any money inside of it. Defendant looked, but did not see the money, "other than the money that was still there." There was "[o]ne stack" of $20 and $100 bills inside the safe.
Father yelled at defendant about "how much money [defendant] had taken and that [she] didn't have permission." Defendant responded, " 'Dad, what are you talking about? We've been doing this since I moved in. What do you mean?' " Father slapped defendant and called her "a thief." Father grabbed defendant's hair and spit in her face. Father left the house. Approximately three hours later, defendant left the house due to Father slapping her and spitting on her. Defendant did not respond to Father's text messages and phone calls because she did not want to argue with him and cause a heart attack, and because she was hurt by Father's acts of slapping her and spitting on her.
Defendant had been smoking marijuana since the age of 16, but defendant never injected drugs. Defendant did not smoke marijuana in Father's house. Defendant did not use money from the safe to purchase marijuana. When defendant moved into Father's house, Father's brother (Uncle) was living in the house as well. Uncle moved out of Father's house in February 2014. Defendant saw Uncle in Father's bedroom on different occasions talking to Father. Uncle knew about the safe and how to access it.
After the confrontation with Father, defendant worked as an exotic dancer to support her children. Defendant attempted to give money to Father, but he refused to accept it.
DISCUSSION
A. MOTIVE
1. PROCEDURAL HISTORY
Defendant moved in limine to exclude Father's opinion that defendant abused drugs. Defendant argued the evidence would be more prejudicial than probative. (Evid. Code, § 352.) The prosecutor asserted the evidence was relevant to defendant's motive for taking the money. Defendant argued there was no foundation for Father's opinion. The trial court explained that a lack of foundation for the opinion "would be grounds for cross-examination." Defendant argued the jury would not be able to ignore Father's opinion after hearing it on direct examination. The trial court agreed to hold an evidentiary hearing to determine the foundation for Father's opinion.
At the hearing, Father testified that defendant admitted abusing methamphetamines. When defendant moved out of Father's house, Father found a baggy with little rocks in it in defendant's bedroom, which Father believed was crack cocaine. Further, Father believed defendant abused drugs because defendant's mother introduced defendant to drugs, defendant smelled of marijuana, she had needle marks on her arms and legs in August 2013, and she behaved oddly.
In regard to odd behavior, defendant spoke rapidly, had obsessive compulsive behavior, was constantly moving, picked at her skin, and was spending time with people Father knew to be drug dealers. Father explained that he saw a large bag of marijuana in the possession of Husband. When shown three photographs, Father described the images as reflecting defendant, Vargas, and their mother. In one of the photographs, defendant was "smoking a bong." Father learned about behaviors associated with drug abuse when attending a workshop about special education students.
Defendant argued Father's lay opinion testimony was more prejudicial than probative because the opinion that defendant was a drug user needed to be provided by an expert with specialized training. The prosecutor argued that Father attended a class about drug abuse behaviors, and it is not relevant what type of drug defendant was abusing because it was drug abuse in general that allegedly motivated defendant. The prosecutor asserted Father's observations and the photograph of defendant smoking marijuana were sufficient to establish drug use for the purpose of proving motive.
The trial court found Father's opinion concerning defendant's drug abuse was more probative than prejudicial because it established a motive. The trial court explained that a lay witness with a basic understanding of drug abuse can testify about defendant's admission that she abused methamphetamine, that he smelled marijuana, that he saw needle marks, and that he saw a substance that he believed to be crack cocaine. The trial court concluded, "[T]here's sufficient foundation for a father to give his impression of what he sees and what he knows about his daughter['s] behavior in particular when she lived with him."
2. ANALYSIS
Defendant contends the trial court erred by admitting evidence that the theft was motivated by drug abuse.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We apply the abuse of discretion standard of review. (People v. Peoples (2016) 62 Cal.4th 718, 743.) A trial court abuses its discretion when its ruling is " 'arbitrary, capricious, or patently absurd.' " (Id at p. 745.)
" ' "Because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." ' " (People v. Garcia (2008) 168 Cal.App.4th 261, 275.) In the instant case, evidence of defendant's drug abuse was probative because it was circumstantial evidence reflecting why defendant, as opposed to Vargas or Uncle, was the person who took Father's money. The prosecution had evidence of defendant having the opportunity to take the money, e.g., Father was in the hospital for 24 hours and defendant had access to the safe. However, it was also shown that Uncle had access to the safe and that Vargas possibly had access to the safe. In order to prove beyond a reasonable doubt that it was defendant who took the money, evidence of defendant's motive needed to be supplied.
The evidence was prejudicial because the jury may react emotionally to a mother, such as defendant, abusing drugs. (See People v. Cage (2015) 62 Cal.4th 256, 275 [prejudice refers to potential emotional bias].) Defendant asserts the evidence was prejudicial because it created the risk of the jury convicting defendant based upon evidence of her bad character or her propensity for illegal acts.
In this case, the jury heard evidence that defendant was allegedly violently raped by Husband, and that she allegedly abandoned her children by leaving them at Father's house after the confrontation with Father. Thus, the jury heard other evidence that was difficult and perhaps emotional. The evidence that defendant abused drugs was no more inflammatory than the evidence that she abandoned her children because they both involve the idea of defendant neglecting her children.
The evidence that defendant abused drugs was not likely to mislead the jury or create a risk of the jury convicting defendant of theft based upon her drug abuse. If the evidence of defendant's drug abuse is believed, then she has been smoking marijuana for over a decade and has no prior convictions. Thus, it is not reasonably likely that a jury would equate defendant's drug abuse with theft. Instead, it is likely the jury considered the drug abuse evidence as a possible motive for the theft, but would not be confused or misled into thinking that because defendant abused drugs she must be guilty of theft.
In sum, the drug abuse evidence is probative because it explains defendant's motive, which is helpful in establishing why defendant, as opposed to Vargas or Uncle, is the person who took Father's money. The probative value of the drug abuse evidence is not substantially outweighed by the probable prejudicial effect of the evidence because (1) there was other emotionally charged evidence that was equally inflammatory, and (2) there was little risk of the jury being confused or misled by the evidence. Accordingly, we conclude the trial court did not abuse its discretion.
Defendant cites People v. Cardenas (1982) 31 Cal.3d 897, 906-907 (Cardenas), to support her position that the trial court erred. In Cardenas, our Supreme Court wrote, " 'The rule applicable here is that evidence of an accused's narcotics addiction is inadmissible where it 'tends only remotely or to an insignificant degree to prove a material fact in the case.' " (Id. at p. 906.) The court explained, "[T]he evidence's 'probative value to show motive [is] far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on [an accused's] character rather than on proof of the essential elements of the crime.' " (Id. at pp. 906-907.)
We have explained, ante, that the evidence of defendant's drug abuse has probative value because it helps to establish that it was defendant, rather than Vargas or Uncle, who took Father's money. Thus, the evidence is not remotely or insignificantly probative. We have also explained, ante, that the probable prejudicial effect of the evidence is minimal. Accordingly, the conclusion in Cardenas does not persuade us that the trial court abused its discretion in this case.
B. FORFEITURE
Defendant asserts, in the alternative, that if his trial counsel forfeited the foregoing contention, then his trial counsel rendered ineffective assistance. We have addressed the merits of defendant's contention ante. Therefore, we do not address this alternative issue.
C. DEFENDANT'S ARMS
1. PROCEDURAL HISTORY
Defendant testified on August 9 and 10, 2016. During the direct examination of defendant, the following exchange occurred:
"[Defense Counsel]: Did you in fact—had you in fact been poking yourself with needles?
"[Defendant]: No.
"[Defense Counsel]: Did you have any marks on your arms at all?
"[Defendant]: No.
"[Defense Counsel]: Do you have any marks on your arms today?
"[Defendant]: No.
"[Defense Counsel]: Your Honor, with the Court's permission, may I have [defendant] display her arms to the jury?
"The Court: No, thank you. Next question, please. We're talking about something that happened more than a year ago. It matters not what her arms are like today. It's irrelevant."
2. ANALYSIS
Defendant contends the trial court erred by not permitting defendant to display her arms to the jury so as to show she did not have scars from needle marks.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We apply the abuse of discretion standard of review. (People v. Peoples, supra, 62 Cal.4th at p. 743.)
Defendant contends the demonstration that defendant does not have scar tissue on her arms caused by needles is probative on the issue of defendant's drug abuse because "[i]t is common knowledge that people who inject themselves with drugs leave scars." Defendant supports this assertion with a citation to Cardenas. In that case, the court wrote, "The old scar tissue, Howard said, showed that appellant had been addicted to heroin over a long period of time." (Cardenas, supra, 31 Cal.3d at p. 903.)
The evidence reflects defendant abused methamphetamines on a recreational basis and that she had needle marks and bruises on her arms. There was no evidence that defendant was a heavy or long-term abuser of injectable drugs, and there was no testimony that defendant had scar tissue on her arms. Thus, there was nothing probative about demonstrating a lack of scar tissue on defendant's arms—no one asserted that there should be scar tissue on her arms. Accordingly, because the evidence did not have probative value, the trial court did not abuse its discretion by excluding it.
D. CALCRIM NO. 316
1. INSTRUCTION
CALCRIM No. 316 provides two alternatives for instructing the jury on witness credibility. One of the options is as follows: "If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
2. PROCEDURAL HISTORY
The prosecutor requested the trial court instruct the jury that it could consider defendant's "prior criminal conduct" when evaluating her credibility, in particular defendant's prior drug abuse. Defendant asserted drug abuse is not a crime of moral turpitude and therefore is not relevant to credibility. The prosecutor argued that the instruction did not require a crime of moral turpitude—it only required an illegal act.
The trial court agreed with the prosecutor. The trial court said, "[The instruction] doesn't discuss moral turpitude. It talks about a crime. Use of methamphetamine is a crime in the state of California. So I appreciate your argument, but I'm going to allow this instruction to be given." The trial court instructed the jury with the language of CALCRIM No. 316, quoted ante.
3. ANALYSIS
Defendant contends the trial court erred by instructing the jury with CALCRIM No. 316 because drug abuse is not a crime of moral turpitude. The People concede the trial court erred, but contend the error was harmless.
We apply the de novo standard of review. (People v. Simon (2016) 1 Cal.5th 98, 133.)
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.] [¶] '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.' " (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted.) Simple possession of drugs does not necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317.) Drug addiction, standing alone, is inadmissible for impeachment purposes. (People v. Hernandez (1976) 63 Cal.App.3d 393, 405.)
The evidence of defendant's drug abuse was admitted for the purpose of proving motive, and the trial court conducted an Evidence Code section 352 analysis related to using the evidence to prove motive. The trial court erred by instructing the jury it could use evidence of defendant's prior drug abuse for the additional purpose of evaluating defendant's credibility. (People v. Clark, supra, 52 Cal.4th at p. 931; People v. Hernandez, supra, 63 Cal.App.3d at p. 405.)
4. HARMLESS ERROR
We examine whether the error was harmless. Specifically, we analyze whether it is reasonably probable a result more favorable to defendant would have been obtained if the error had not occurred. (People v. Jones (2012) 54 Cal.4th 1, 53; People v. Watson (1956) 46 Cal.2d 818, 836.) As explained ante, the drug abuse evidence was admissible as evidence of defendant's motive. Therefore, the jury would have been aware of the evidence regardless of the trial court's error.
When defendant testified at trial she repeatedly contradicted herself. Three examples are as follows:
First, defendant denied that Husband ever spit on her. Defendant denied ever saying that Husband spit on her. Defendant was then shown a social media post in which she wrote, " 'For ten years, I was raped, beat, spit on, and humiliated by my soon-to-be ex-husband.' " After being shown the social media post, defendant testified that she lied in the social media post.
Second, defendant testified that, when Father was drafting his will, Vargas was present when Father described where the safe key was located. However, defendant also testified that, to defendant's knowledge, Vargas did not know there was key for the safe.
Third, defendant testified that Father gave her a "couple hundred dollars" each week. Father and defendant accessed the safe together; Father took the money from the safe and gave it to defendant. However, if Father were not home, then defendant would take the money from the safe by herself. On every occasion, defendant would ask Father before accessing the safe and he would grant her permission. Defendant said she would "Never" go into the safe and simply take money without asking. However, defendant also said she would access the money in the safe and then tell Father about it after the fact. Defendant said she always told Father how much money she took from the safe; however, she did not keep track of the amount of the money she took from the safe.
In sum, defendant admitted she lied on a prior occasion, contradicted herself about Vargas's ability to access the safe, and contradicted herself about her own procedures for accessing the safe. Given defendant's admission that she lied and her various contradictions, defendant's credibility was tarnished. As a result, it is not reasonably probable that defendant would have obtained a more favorable outcome if the trial court did not instruct the jury that it could utilize the drug abuse evidence for credibility purposes. (CALCRIM No. 316.)
E. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that if this court finds the foregoing error of instructing the jury with CALCRIM No. 316 to be harmless, because the trial court gave the jury other instructions concerning the credibility of witnesses (CALCRIM Nos. 105 & 226); and/or because defense counsel failed to request a limiting instruction concerning CALCRIM No. 316, then defendant's trial counsel was ineffective for not objecting to CALCRIM Nos. 105 and 226, and not for not requesting a limiting instruction related to CALCRIM No. 316.
We have concluded ante that the trial court's error was harmless because defendant's credibility was tarnished by evidence other than the drug evidence. Our harmless error analysis is not dependent upon the trial court having instructed the jury with CALCRIM Nos. 105 and 226 or the failure to request a limiting instruction. Accordingly, we do not address the merits of defendant's alternative ineffective assistance of counsel argument.
F. TEMPORARY TAKING
1. INSTRUCTIONS AND PROCEDURAL HISTORY
CALCRIM No. 1800, provides, in relevant part, "To prove that the defendant is guilty of this crime, the People must prove that: [¶] . . . [¶] . . . When the defendant took the property she intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property." The jury was given the foregoing instruction.
The prosecutor requested the jury be given a supplemental instruction concerning intent for the crime of theft. The supplemental instruction provided, "Intent to temporarily deprive an owner of his property is sufficient to establish the element of intent under CalCrim 1800. [¶] It is not a defense that at the time the perpetrator took the property that she intended to restore the property."
Defendant objected to the supplemental instruction. Defendant asserted intent to temporarily deprive the owner of his property is not the mens rea rule for theft—the law requires an intent to permanently deprive.
The trial court responded, "There's no evidence that she didn't have the intent to permanently deprive when the money was stolen. It wasn't until a significant amount of time later that she tried to give some money back. So there was a large amount of time that passed. So that's the reason I believe this is an appropriate special instruction." The supplemental instruction was given to the jury.
2. ANALYSIS
Defendant contends the trial court erred by instructing the jury that the intent requirement for theft is an intent to temporarily deprive.
We apply the de novo standard of review in assessing whether the instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Grand theft is defined as the taking of money, in excess of $950. (§ 487, subd. (a).) Inherent in the offense is the requirement that the defendant have the specific intent to permanently deprive the owner of his property. (People v. Kageler (1973) 32 Cal.App.3d 738, 744.) "But the [intent] rule is not inflexible. 'The word "permanently," as used here is not to be taken literally.' " (People v. Davis (1998) 19 Cal.4th 301, 307.) For example, "the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 58.)
The supplemental instruction given to the jury provided, "Intent to temporarily deprive an owner of his property is sufficient to establish the element of intent under CalCrim 1800." CALCRIM No. 1800, which was given to the jury, provided, in relevant part, "When the defendant took the property she intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."
The supplemental instruction explicitly referred the jury to CALCRIM No. 1800. When reading the intent portion of CALCRIM No. 1800, it reflects an intent to permanently deprive or, in the alternative, an intent to deprive the victim of the property for an unreasonable period of time resulting in the victim losing the major benefit of the property—this is the definition of temporary. Thus, the jury would read the supplemental instruction concerning an intent to temporarily deprive and be referred to CALCRIM No. 1800, which then provided the proper definition of the intent to temporarily deprive. Accordingly, the jury was properly instructed.
G. REPAYMENT
The second sentence in the supplemental instruction provided, "It is not a defense that at the time the perpetrator took the property that she intended to restore the property." Defendant contends the trial court erred by giving the jury this instruction.
We apply the de novo standard of review in assessing whether the instruction correctly states the law. (People v. Posey, supra, 32 Cal.4th at p. 218.) The law provides, " '[I]t is clear '[r]estoration of property feloniously taken or appropriated is no defense to a charge of theft' " (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) The standard instruction reflecting this rule is CALCRIM No. 1862, which provides, "If you conclude that the People have proved that the defendant committed __________ <insert charged theft crime>, the return or offer to return (some/all) of the property wrongfully obtained is not a defense to that charge."
The supplemental instruction given by the trial court differs from the standard instruction because the supplemental instruction discusses defendant's intent to return the property at the time of the taking, as opposed to a post-theft offer of restitution. Defendant contends this difference causes the supplemental instruction to be erroneous.
The law provides that evidence of a nonlarcenous intent at the time of the taking is probative on the issue of mens rea. In other words, if, at the time of the taking, defendant intended to only temporarily borrow the property, then that evidence would be relevant to the issue of whether defendant had the intent to permanently deprive. (People v. Edwards, supra, 8 Cal.App.4th 1092, 1100-1101.) The trial court's supplemental instruction to the jury, that defendant's intent to return to the property at the time of the taking is not a defense, was incorrect because such evidence could negate the mens rea element for theft. Accordingly, we conclude the trial court erred because the instruction does not accurately reflect the law.
We examine whether, beyond a reasonable doubt, the instructional error did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant testified that there was no agreement for defendant to repay Father; however, she intended to repay Father upon finishing school and obtaining employment. In other words, defendant testified the money from Father was a gift, but she hoped to one day repay Father for the gift. During closing argument, the defense's theory of the case was that defendant had permission to take money from the safe. The defense presented a claim-of-right argument to the jury. The defense asserted defendant lacked the intent for theft because, at the time of the taking, defendant believed she had a right to the money.
Defendant's evidence and argument reflected that defendant did not need to repay Father because the money was a gift—defendant had permission to access the money, take the money, and spend the money. According to defendant, there was no mens rea because defendant's believed she had a right to the money. Thus, whether or not defendant intended to repay the money was not relevant to the evidence and argument presented to the jury. The lack of mens rea, according to defendant's testimony and argument, came from Father giving defendant the money as a gift and telling her that she had permission to access it.
If the trial court had instructed the jury that the intention to repay the money at the time of the taking can negate mens rea, we see no evidence upon which defendant would have altered her argument. For example, defendant did not testify that she lacked permission to take the money but nevertheless took the money with the intention of promptly returning it. Defendant's evidence and argument repeatedly presented the theory that Father gave the money to defendant as a gift and therefore she could take the money. As a result, the trial court's erroneous instruction about defendant's intention to repay the money at the time of the taking was of slight, if any, consequence because it did not pertain to the evidence or argument offered by defendant. Therefore, we conclude, beyond a reasonable doubt, that the instructional error did not contribute to the verdict obtained.
H. EXCLUSION OF EVIDENCE
1. PROCEDURAL HISTORY
During the direct examination of defendant, the following exchange occurred:
"[Defense Counsel]: And then was it your intention to pay [Father] back after you had gotten your employment?
"[Defendant]: Yes, it was.
"[Prosecutor]: Objection. Relevance.
"The Court: Overruled. But it's leading. [¶] . . . [¶] . . . I won't strike the answer. Just don't lead."
As the direct examination continued, the following exchange took place:
"[Defense Counsel]: While you were making money as a stripper, did you ever make efforts to repay your father?
"[Defendant]: Yes, I did.
"[Defense Counsel]: Were you able to do that?
"[Defendant]: No, I wasn't.
"[Prosecutor]: Your Honor, I'd object as to relevance.
"The Court: Sustained.
"[Prosecutor]: Thank you. Motion to strike.
"The Court: It will be stricken."
During the redirect examination of defendant, the following exchange occurred:
"[Defense Counsel]: While you were working after this confrontation [with Father], did you make any efforts to try to pay your father back?
"[Defendant]: Yes.
"[Defense Counsel]: Were you successful in doing that?
"[Defendant]: No.
"[Defense Counsel]: Why weren't you successful?
"[Defendant]: He didn't want my money.
"[Defense Counsel]: Do you have any knowledge as to why he didn't want your money?
"[Prosecutor]: Objection. Relevance.
"The Court: Overruled.
"[Prosecutor]: Thank you.
"[Defense Counsel]: Do you have any knowledge as to why he didn't want your money?
"[Defendant]: I have an opinion.
"[Defense Counsel]: Did he express to you why he did not want the money?
"[Defendant]: No.
"[Defense Counsel]: Did you have a belief in your mind as to why he didn't want the money?
"[Defendant]: Yes.
"[Defense Counsel]: Do you believe that it had anything to do with your work?
"[Prosecutor]: Objection. Speculation.
"The Court: Counsel, you're leading.
"[Defense Counsel]: My apologies, Your Honor. I'll rephrase. [¶] After the confrontation, with your father, did you have any other employment besides working as a stripper at De Ja Vu?
"[Defendant]: No."
2. DISCUSSION
Defendant contends the trial court erred by excluding evidence of her intention and attempt to repay Father. Defendant asserts, "[T]he evidence that [defendant] hoped, intended, and tried to repay her father from her earnings as a stripper should not have been stricken."
We infer defendant is referring to the portion of the record, on direct examination, wherein defense counsel asked, "Were you able to do that," in regard to defendant repaying Father, and the trial court struck defendant's answer, which was "No, I wasn't." Any error caused by the striking of defendant's answer was cured during the redirect examination when defense counsel asked, "Were you successful in doing that," in regard to defendant repaying Father, defendant responded, "No," and the answer stood. Accordingly, the trial court permitted testimony concerning defendant's attempt to repay Father. As a result, we conclude the trial court did not err.
I. CUMULATIVE ERROR
Defendant contends the cumulative effect of the alleged errors in this case requires the judgment be reversed. We have found two harmless errors: (1) the trial court erred by instructing the jury it could use the evidence of defendant's prior drug abuse when evaluating defendant's credibility; and (2) the trial court erred by instructing the jury that it is not a defense to the crime of theft that, at the time of the taking, defendant intended to return the property.
"In examining a claim of cumulative error, the critical question is whether defendant received due process and a fair trial." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
As explained ante, the error concerning intent at the time of the taking was of little consequence in this trial because defendant asserted the money was a gift. In regard to the credibility error, as explained ante, defendant's credibility was tarnished by other evidence. Accordingly, neither error is significant, and when considered together they did not affect the fairness of defendant's trial. (See People v. Cain (1995) 10 Cal.4th 1, 82 [a defendant is entitled to a fair trial, not a perfect trial].) Therefore, we are not persuaded that reversal is required due to the cumulative effect of the trial court's two errors.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.