Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA074538 Leslie E. Brown, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
A jury convicted Nelson Kerr of two counts of unlawful taking of a vehicle, and the trial court placed Kerr on formal probation for a period of five years on a condition he serve a term in county jail, with credit for time served and for conduct credits. We modify the judgment to add additional presentence conduct credits and remand the matter to the trial court to revise a stay away order. In all other respects, we affirm.
FACTS
Kerr became acquainted with Thomas Williams and Zsuzsi Egri (the victims) in 2007. On Friday, August 31, 2007 – just prior to Labor Day – Kerr asked to borrow Williams’ truck for the weekend, and offered to pay Williams $100. Williams agreed to let Kerr use the truck, and Kerr promised to return the truck on Labor Day. He failed to do so. When Kerr did not return Williams’ phone messages, Williams contacted the Pasadena Police Department. Sometime during the week following Labor Day, Williams told Pasadena Police Officer Tim Bundy that Kerr had not returned Williams’ truck, and gave Officer Bundy a cell phone number to reach Kerr. When Officer Bundy contacted Kerr, he refused to provide the location of Williams’ truck, but did promise to return it to Williams the next day. Kerr failed to return the truck.
On September 12, 2007, Williams went to a local courthouse after he heard that Kerr would be at a hearing involving his roommate, Nancy Ng. Williams and Pasadena Police Sergeant Steven Kress spoke to Kerr in the courthouse, and Kerr said he would return Williams’ truck later that day. Kerr again failed to return the truck as promised.
On October 12, 2007, Officer Bundy arrested Kerr for the unlawful taking of Williams’ truck. Kerr refused to provide a specific location of Williams’ truck, but he had papers in his possession with a Temple City address. Officer Bundy requested a police helicopter search of the area, and Williams’ truck was located. Later the same day, Williams retrieved his truck from a tow company impound lot.
On January 13, 2008, Egri let Kerr borrow her minivan for the day, but Kerr did not return the vehicle. Egri tried to contact Kerr a number of times without success. On January 26, 2008, Egri contacted the local sheriff’s department station. Egri spoke with Detective Ronald Hernandez, and reported that Kerr had stolen her minivan. On February 1, 2008, Kerr was arrested at a gas station in Pomona; Egri got her minivan back later the same day.
In October 2008, the People filed an information charging Kerr with two counts of unlawful taking of a vehicle. (Veh. Code, § 10851, subd. (a).) Kerr elected to represent himself. At a jury trial in September 2009, the People presented evidence establishing the facts summarized above, primarily through the testimony of the two victims, Thomas Williams and Zsuzsi Egri.
Kerr testified in his own defense. According to Kerr, Williams had “hired” him in 2007 “to work... on a number of issues.” Kerr did “investigation work” for Williams in connection with a failed investment, acted as a part-time caretaker for Williams’ mother, and cleaned and did auto repair work on several vehicles owned by Williams. Kerr said he periodically provided “informal” invoices to Williams showing the money he owed for Kerr’s services. Williams, in turn, periodically paid for Kerr’s meals at restaurants and gave him other benefits, the value of which Kerr deducted from the money owed by Williams. By Labor Day 2007, Williams owed $1,700 to Kerr. On the Friday before Labor Day 2007, Kerr needed a truck to move very quickly. He and Williams entered a “kind of business arrangement” allowing Kerr to “rent” a truck from Williams. Kerr’s rental payments were to be $100 per week for 10 weeks, and were to be offset against the $1,700 owed to him by Williams. At some point during the six weeks that Kerr had possession of Williams’ truck, Kerr expended something “less than $200” for oil, filters and spark plugs to service Williams’ truck. Kerr acknowledged receiving phone messages from Williams demanding the return of his truck. However, Kerr said that he had met with Williams’ attorney, Philip Koebel, on September 12, 2007, and that the earlier rental agreement was “confirmed, ” and that it was agreed Kerr did not have to return the truck.
Kerr called attorney Koebel as a defense witness at trial. Koebel denied that he ever represented Williams, and denied he was ever involved in any agreement about renting Williams’ truck.
With regard to Egri’s vehicle, Kerr testified that he first became acquainted with Egri in September 2007 when Egri and her business partner/boyfriend hired him to work on a case involving one of their employees. In January 2008, Egri contacted Kerr “out of the blue, ” and said that she and her boyfriend were “in the midst of parting, ” and that she wanted help with a settlement related to their business. Kerr helped Egri obtain a restraining order against her former boyfriend, but he did not charge her for his services. Kerr thereafter spent numerous hours helping Egri “reconstruct” her finances for the previous 12 to 14 years in preparation for a lawsuit she was planning against her former boyfriend. Egri paid Kerr some money for his services, but not all that was due Kerr.
According to Kerr, he had prior experience as a “legal assistant” and “trial preparation assistant.”
In January 2008, Kerr and Egri agreed that he would rent her minivan, with his rent payments offset against the money she owed him for his work on her case. Egri delivered the minivan to him on January 13, 2008, and Kerr spent about $92 to repair it in order for it to pass a smog check needed to renew the registration. On January 16, 2008, Kerr and Egri signed an “invoice” for the money she owed him, and a second “invoice” showing that his rental fees of $125 per week for her minivan, for a period of three weeks, would be offset against $1,360 that she owed him for his services. Later, “out of the blue, ” Egri began sending emails and leaving voice mails for Kerr, accusing him of stealing her minivan and demanding its return.
At the time of trial, Kerr did not have any documents memorializing any of his stated agreements with Williams or Egri.
Closing arguments ended on the morning of September 28, 2009, and at 9:39 a.m. the jury began deliberations; at 11:20 a.m., the jurors advised the trial court they reached a verdict. Shortly thereafter, the jury returned its verdicts finding Kerr guilty of the two counts of unlawful taking of a vehicle. On October 15, 2009, the trial court placed Kerr on formal probation for a period of five years on condition he serve 207 days in county jail, less 207 days of presentence credits, based on 138 days of actual time in custody and 69 days of good time/work time conduct credits.
DISCUSSION
I. The Instructional Error Claims
Kerr contends his convictions must be reversed because the trial court refused his request for a pinpoint instruction on “service liens, ” and failed to instruct sua sponte on the defenses of “claim of right” and “mistake of fact.” We are not persuaded reversal is required.
A. Pinpoint Instruction on “Service Liens”
Kerr first contends his convictions must be reversed because the trial court refused to give the following pinpoint instruction: “By requesting service and materials for their respective vehicles, competently performed by Nelson A. Kerr and properly ‘Invoiced, ’ a ‘Service Lien’ and/or a ‘Mechanic’s Lien’ attached to each of the vehicles, lawfully authorizing Nelson A. Kerr to retain possession until the ‘Invoices’ for the service work performed [and] materials supplied were paid in full....”
The defendant is generally entitled, on request, to an instruction “pinpointing” the theory of his defense. (People v. Earp (1999) 20 Cal.4th 826, 886; People v. Roberts (1992) 2 Cal.4th 271, 313-314.) A pinpoint instruction must be given if supported by substantial evidence. (People v. Ward (2005) 36 Cal.4th 186, 214; People v. Marshall (1997) 15 Cal.4th 1, 39.) However, such an instruction may be refused if it is argumentative, duplicative or confusing. (People v. Wright (1988) 45 Cal.3d 1126, 1134-1135; People v. Garceau (1993) 6 Cal.4th 140, 192-193.) Here, the requested instruction was properly refused as it was not supported by substantial evidence and argumentative.
Part 4 of Division 3 of the Civil Code governs obligations arising from particular transactions. Within part 4 of division 3 of the Civil Code, title 14, chapter 6.5 governs liens on vehicles. (Civ. Code, § 3067 et seq.) As relevant to Kerr’s current case, section 3068, subdivision (a), provides: “Every person has a lien dependent upon possession for the compensation to which the person is legally entitled for making repairs or performing labor upon, and furnishing supplies or materials for, ... any vehicle of a type subject to registration under the Vehicle Code, subject to the limitations set forth in this chapter. The lien shall be deemed to arise at the time a written statement of charges for completed work or services is presented to the registered owner or 15 days after the work or services are completed, whichever occurs first....” A service lien on a vehicle is automatically extinguished and “no lien sale shall be conducted” unless the lienholder – within 30 days after the lien has arisen – either applies to the Department of Motor Vehicles for authorization to conduct a lien sale, or files an “action in court” to foreclose the lien. (§ 3068, subd. (b).) Notice of an application for authorization to conduct a lien sale, or the initiation of an action in court, must be given to the registered and legal owners of the vehicle, if they are ascertainable from the registration certificates within the vehicle, and to any person whom the lienholder knows, or reasonably should know, claims an interest in the vehicle. (§ 3071.)
In the trial court, Kerr cited Civil Code sections 3110 and 3051 in support of his request for a pinpoint instruction on service liens. All further section references are to the Civil Code.
The trial court properly refused Kerr’s request for a pinpoint instruction on service liens because he failed to present substantial evidence showing that a service lien existed during the time frame that he retained possession of Williams’ vehicle or during the time frame that he retained possession of Egri’s vehicle. (People v. Stanley (2006) 39 Cal.4th 913, 946 [an instruction is properly refused when it is not supported by substantial evidence].) There is no evidence in the record showing that Kerr ever delivered a written statement of charges to Williams for vehicle repairs, or showing the exact date on which Kerr purportedly worked on Williams’ vehicle. As a result, there was no evidence showing when the supposed service lien had arisen as to Williams’ vehicle. There is also no evidence showing that Kerr gave the required notices to keep a service lien on Williams’ vehicle from extinguishing. The record is the same regarding Egri’s vehicle. At best, Kerr’s testimony showed that he gave an invoice to Egri for the accounting work he did on her behalf, not for any service on her vehicle. The record belies Kerr’s contention that his actions involving Williams’ and Egri’s vehicles had something to do with a claim that he had a service lien. Even were we to assume that the service lien statutes apply to an unlicensed lay person who works on a vehicle for an acquaintance, Kerr did not present any evidence showing that he had a service lien in this case. Kerr’s amorphous proffer that a service lien situation existed, without any substantial evidence actually showing the existence of a service lien situation, was not sufficient to compel the trial court to give Kerr’s pinpoint instruction.
We also note that Kerr’s instruction was properly denied as argumentative. The instruction improperly “invite[d] the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact.” (People v. Wright, supra, 45 Cal.3d at p. 1135.) More specifically, the instruction inappropriately directed the jury that services on the vehicles were properly performed and invoiced, and that a mechanics lien had attached, and that it authorized Kerr to keep the vehicles. Even had there been sufficient evidence for the instruction, each of those issues was for the jury to decide.
B. Mistake of Fact – Possessory Lien
Kerr next contends his convictions must be reversed because the trial court did not sua sponte instruct with CALCRIM No. 3406, using language to this effect: “The defendant is not guilty of unlawful taking of a vehicle if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or mistakenly believed a fact. [¶]... [¶] If you find that the defendant believed he was entitled to a possessory lien on both vehicles, and that his belief was reasonable, he did not have the specific intent or mental state required for the crime of unlawful taking of a vehicle.”
The trial court did not have a duty to instruct sua sponte on the law of mistake of fact. There is no duty to give an instruction when the evidence does not support the instruction. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) As we explained above, we see no evidence in the trial record showing that Kerr – during the timeframe he possessed Williams’ vehicle and/or during the timeframe he possessed Egri’s vehicle – had a mistaken belief that he was entitled to a possessory lien on their vehicles. Kerr’s evidence showed, at most, that at the time he first took possession of the vehicles he did so pursuant to rental agreements for the vehicles.
C. Claim of Right Instruction
Kerr next contends his convictions must be reversed because the trial court did not sua sponte instruct with CALCRIM No. 1863 with language to this effect: “If the defendant obtained property under a claim of right, he did not have the intent required for the crime of unlawful taking of a vehicle. The defendant obtained property under a claim of right if he believed in good faith that he had a right to the specific property, and he openly took it.... The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable.... 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. [¶]... [¶] If you have a reasonable doubt about whether the defendant had the intent required for unlawful taking of a vehicle, you must find him not guilty of both charges.”
Instruction on defenses is required where substantial evidence supports a particular defense and (1) the defendant is relying on such a defense, or (2) the defense is not inconsistent with the defendant’s theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157-158.)
We agree with Kerr that there was evidence to support an instruction on a claim of right defense. There is no dispute that Williams and Egri allowed Kerr to take possession of their vehicles; it is not disputed that Kerr took possession of the vehicles openly. The issue was whether Kerr wrongly kept possession of the vehicles. If the jury believed Kerr’s testimony about rental agreements, it could have found that Kerr had a good faith belief he obtained Williams’ vehicle under a claim of right. The claim of right is not necessarily defeated by the undisputed evidence showing that Williams began demanding the return of his truck a few days after Kerr first took possession of the vehicle; the jury could have found that Kerr had an ongoing belief he had a claim of right, based on a rental contract, to retain possession.
We disagree with the People that People v. Wooten (1996) 44 Cal.App.4th 1834 (Wooten) supports a different conclusion. In Wooten, the Court of Appeal found no error in failing to give a claim of right instruction where undisputed trial evidence showed that the defendant had concealed his taking of the property, belying his bald testimony at trial that he had taken possession of the property in a good faith belief he was entitled to the property. (Id. at p. 1849.) Kerr did not conceal his taking of the vehicles, and did not conceal his retention of the vehicles. At most, he concealed the location of the vehicles after the owners began demanding the return of the vehicles. Kerr’s conduct is not necessarily inconsistent with his purported belief that he a right to possess the vehicles.
The analysis applicable to Williams’ truck applies equally force to Egri’s mini-van. Kerr testified that he and Egri entered an agreement for Kerr to rent Egri’s minivan.
However, after examining the record, we are not persuaded that a claim of right instruction would have made any difference under any standard of review. (Compare Chapman v. California (1967) 386 U.S. 18, 24; with People v. Watson (1956) 46 Cal.2d 818, 836.) The victims’ testimony was unqualified – they gave Kerr permission to borrow their vehicles for one or two days, and he kept possession after permission ended and against their express and repeated demands for the return of the vehicles. Kerr’s testimony in opposition contained internal inconsistencies. He testified he took possession of the vehicles for short-term needs (to move quickly or for running errands), but entered into longer-term rental deals for the vehicles. He testified he prepared documents that reflected his dealings with the victims, but he did not have the documents at the time of trial. Worse still, he said he was going to bring in the documents, but then failed to do so. In addition, Kerr testified he had confirmed the rental agreement for Williams’ truck with a lawyer who represented Williams. However, when he called the lawyer as a defense witness, the lawyer denied that he had ever represented Williams and “absolutely” refuted that he had ever made any agreement connected with Williams’ truck.
The jury basically heard two stories and believed the victims’ version of events, not Kerr’s. Given the state of the trial evidence and the fact that the jury returned its verdicts in two hours, we are overwhelmingly convinced that the jurors did not believe Kerr’s version of events. Had a claim of right instruction been given the result of Kerr’s trial would have been the same because the jury still would not have believed Kerr’s version of events.
D. Mistake of Fact – “Contract Rescission”
Kerr also contends his convictions must be reversed because the trial court failed to instruct sua sponte on a mistake of fact defense involving “contract rescission.” More specifically, Kerr argues there was evidence (1) he had rental agreements with Williams and Egri; (2) they “rescinded their rental agreements;” and (3) Williams and Egri were required to pay Kerr the money they owed him “in exchange for [Kerr]’s return of the two vehicles.” For the reasons explained in addressing Kerr’s claim of right argument, we agree with Kerr that there was evidence showing he had rental agreements with Williams and Egri, and there was evidence they “rescinded their rental agreements.” We disagree, however, with Kerr’s argument that he was entitled to a mistake of fact instruction based on the contract rescission argument. The evidence did not show that Kerr believed the terms of the purported rental agreements provided that Kerr had the right to hold Williams’ truck as a kind of pledged collateral until the victims paid their allegedly outstanding debts to Kerr. Kerr’s testimony did not support that proposition.
II. Conduct Credits
Kerr claims he is entitled to additional conduct credit under the revised version of Penal Code section 4019 effective January 25, 2010. We agree.
The offenses were committed in 2007 and 2008. Appellant was convicted by jury and sentenced in 2009. On January 25, 2010, while this matter was pending on appeal, Penal Code section 4019 was amended to increase the presentence conduct credits to which a defendant is entitled. The amended statute contains no express statement of retroactivity, nor does it contain a savings clause. Appellant contends he is entitled to the additional conduct credits provided in amended section 4019. He argues that the amendment applies retroactively to all cases not yet final as of January 25, 2010, when the new statute became effective. We agree appellant is entitled to the additional credit.
All section references are to the Penal Code.
Under section 2900.5, a person sentenced to state prison is entitled to credit against the term of imprisonment for all days actually spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a defendant may earn additional presentence credit for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are collectively called “conduct” credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) When appellant was sentenced, section 4019 provided that he could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) On January 25, 2010, while this matter was pending on appeal, Senate Bill No. 18 became effective, authorizing a qualifying defendant to accrue conduct credits at a rate of four days for every four days served. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50; new § 4019, subd. (f).) The question of whether amended section 4019 applies retroactively to cases pending at the time it became effective has been addressed by numerous published opinions, and the California Supreme Court has granted review on the issue in the case of People v. Brown (2010) 182 Cal.App.4th 1354 (S181963). This Division has previously found retroactive application of the statute is appropriate. (People v. Bacon (2010) 186 Cal.App.4th 333, rev. granted Oct. 13, 2010 (S184782).) We adhere to that decision, and find appellant is entitled to the benefit of the amendment.
The statute was amended again effective September 28, 2010, but the most recent amendments apply to prisoners confirmed for crimes committed on or after that date. (§ 4019, subd. (g).)
At the time of sentencing in October 2009, the trial court imposed a county jail term of 207 days, with 207 days of credit based on 138 days of actual time in custody and 69 days of good time/work time credits. Applying the January 25, 2010, revision of the statute here, Kerr is entitled to 138 days of good time/work time credits rather than the 69 days he was awarded. Accordingly he should be awarded 69 additional days of conduct credit.
III. The “Stay Away From the Victims” Condition of Probation
Kerr contends the trial court abused its discretion when it imposed a condition of probation ordering him not to contact Williams and Egri, and not to contact two others, Nancy Ng and Phillip Koebel, who were related actors and who testified as witnesses at Kerr’s trial. Kerr claims he is owed money by Williams, Egri, and Ng, and may have a viable civil claim against Koebel. According to him, the stay away order has taken away his constitutionally guaranteed right to access to the civil courts where he may seek to recover damages. Although we recognize the trial court’s legitimate concern that Kerr may not harass Williams, Egri, Ng and Koebel, we agree with Kerr that the condition of probation, as it currently stands, is overbroad.
At the sentencing hearing, Kerr advised the trial court that he had “collection” claims against Williams and Egri totaling more than $100,000, and that an order for-bidding him from any contact with Williams and Egri, even through an attorney, would unlawfully interfere with his collection efforts. The court advised Kerr that, to the extent he already had a legal judgment against Williams and Egri, then he could “certainly... through an attorney pursue that.” At the same time, the court expressed its concern that Kerr would harass Williams, Egri, Ng and Kobel in the event he was allowed to pursue his “so-called collection effort.”
There can be no doubt that the citizens of our state have a constitutional right of access to our state’s civil courts. (See, e.g., Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821.) At the same time, it is well-settled that a probation condition imposing limitations on a person’s constitutional rights must be closely tailored to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) While we are uncertain about the merits of Kerr’s civil claims, we believe that the probation condition unduly interferes with his constitutional right of access to the courts and should be narrowed. We believe Kerr should be required to stay away from the aforementioned persons, except that Kerr may contact them as necessary to process and complete a lawfully filed civil suit. The matter is remanded to the trial court with directions to modify the stay away probation condition to provide this exception for civil litigation.
DISPOSITION
The cause is remanded to the trial court with directions to modify the stay away probation condition to provide an exception for properly filed civil litigation. The trial court is directed to prepare amended orders reflecting that Kerr is entitled to an additional 69 days conduct credit, for a total of 138 days conduct credits. As modified, the judgment is affirmed.
We concur: FLIER, J., GRIMES, J.