Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F428242 Martin J. Tangeman, Judge.
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamela D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Glenn Lehman appeals from judgment entered after a court trial in which he was found guilty of two counts of making criminal threats (Pen. Code, § 422) and one count of misdemeanor vandalism. (§ 594, subd. (b)(1).) The trial court found true an allegation that appellant personally used a dangerous or deadly weapon in the commission of one count of making criminal threats. (§ 12022, subd. (b).) The court suspended imposition of sentence and granted appellant three years of formal probation with conditions including 180 days in jail.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that his conviction must be reversed because he acted in justifiable defense of his property against repossession agents who entered his land to take what turned out to be the wrong horse trailer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A repossession agency received written instructions from a bank to repossess a horse trailer owned by George Howes. Howes' residence was identified in the instructions as 1955 Lyn Road in Arroyo Grande, California. Two agents, Jon Hoef and Michelle Juarez, went to that address on August 12, 2009, drove up the gated driveway, and backed their truck up to a horse trailer. Juarez got out to verify the trailer's vehicle identification number (VIN) and to guide Hoef as he backed their truck up to the trailer.
Hoef and Juarez testified that when they arrived at the property the gate was open. Appellant, Sweigart, and a postal carrier testified that the gate was always closed.
Appellant lived on the property with family members and his girlfriend, Michelle Sweigart. The horse trailer was not the trailer that was identified by VIN in the bank's instructions.
Before the repossession agents could discover the error, appellant and Sweigart confronted them. Accounts of the confrontation conflicted. The trial court credited the accounts of Hoef and Juarez over those of appellant and Sweigart.
According to Hoef and Juarez, appellant and Sweigart ran toward them yelling obscenities while Juarez was checking the VIN. Appellant had a rifle in his hand. Appellant pointed his rifle at Hoef through the open passenger side window, while Sweigart confronted Juarez near the hitch. Appellant said to Hoef, "I will fucking kill you, " and held his rifle three to five feet from Hoef's head. Hoef told appellant that he was a repossession agent and they had an order to repossess a trailer. Appellant said he did not "give a fuck. He would kill [Hoef] anyway." Appellant did not tell them to leave the property. He just "cuss[ed] a lot" and "kept repeating that he would shoot [Hoef], kill [Hoef]." Hoef thought the rifle was real and that he and Juarez were going to die. It was actually a pellet gun.
Hoef jumped out of the truck and went over to Juarez. She told him the VIN did not match. Hoef verified that the last digit was wrong. Then Hoef and Juarez told appellant and Sweigart that it was the wrong trailer and they were leaving. Sweigart punched Juarez in the chest and appellant came around the truck and put his rifle to Hoef's forehead. Juarez pushed Sweigart away. Appellant was screaming and saying he "would f'ing kill [Hoef]." Hoef put his hands up and pled, "put the gun down. We are leaving.... [t]he trailer isn't what we are looking for." Appellant said, "I don't fucking care. I will kill you anyway."
A group of people from another building on the property had gathered around. One man said, "I never seen a repo man get killed before, " and told appellant, "go ahead and shoot him."
Hoef edged his way toward the driver's side door of the truck, saying, "I am trying to leave. I am leaving right now." Appellant blocked his path and continued to hold the rifle to Hoef's head. Sweigart blocked Juarez from reaching the truck. Hoef told Juarez, "Let's go" and "try to get in the truck."
Hoef was able to reach the driver's door, and climbed in. Appellant slammed the door shut and the window came off the track.
Juarez reached the passenger side but appellant ran around the truck and swung the rifle butt at her head. Sweigart intercepted the blow with her arm and said to appellant, "Stop. Don't do that." When Juarez got into the truck Hoef drove toward the gate. As he did so appellant hit his truck, leaving scratches.
When Hoef and Juarez approached the gate they saw it was now blocked by a large truck. Hoef got out and checked the gate, which was locked, and then got back into his truck and called 911. As he did so, appellant used the butt of his rifle to break the truck's tail lights, pulled open the driver's side door, pointed the rifle at Hoef again, and tried to pull him out. Sweigart took appellant's rifle from him. Someone opened the gate and moved the truck that had been blocking it. Hoef and Juarez drove away. Hoef described these events to the 911 operator as they occurred. The call was recorded.
Appellant and Sweigart testified that appellant did not point a gun at anyone and he did not threaten to shoot anyone. Appellant said he ran outside when he first heard a commotion, and he took his pellet gun because he thought there were coyotes. He just stood by, "looking stupid, " while Juarez and Sweigart argued about whether it was the right trailer. He saw Juarez push Sweigart. According to appellant, he told Juarez and Hoef to leave but they were slow to do so even after they discovered they had the wrong trailer.
Sweigart testified that she knew these were repossession agents coming for the wrong trailer because she had received several calls about the trailer from a bank. She ran out to Juarez and told her it was the wrong trailer but Juarez insisted that they were going to take it. Sweigart sat on the hitch of the trailer to stop them from taking it. The two women yelled at each other and cussed and shoved each other but, Sweigart testified, she did not punch Juarez and appellant did not threaten Hoef. She said appellant screamed at Hoef to "Get off the property, " but it took Hoef and Juarez a long time to leave. Juarez refused to get back in the truck and said she was going to "kick [Sweigart's] ass." Once in the truck, Hoef and Juarez stopped at the gate. Hoef opened it but then sat in his truck talking on the phone and arguing with appellant about leaving instead of driving away.
Defense counsel submitted without closing argument. After hearing the prosecution's argument, the trial court stated that it was convinced that Hoef and Juarez "truthfully recounted threats to the life of, at least, Jon Hoef under Penal Code 422" and it found that Juarez was an immediate member of Hoef's household. It therefore found appellant guilty of two counts of making criminal threats. (§ 422.) The court found that appellant aimed a pellet gun "directly at [Hoef's] face from a short distance, " and found true the allegation that he personally used a deadly or dangerous weapon against Hoef. (§ 12022, subd. (b)(1).) The court expressed doubt whether the pellet gun constituted a firearm as that term is defined in the Penal Code (§ 12001) and therefore acquitted appellant of two counts of assault with a firearm (§ 245, subd. (a)(2)) and two counts of drawing a firearm (§§ 12022, subd. (a)(1), 417, subd. (a)(2)), and found not true the allegation that appellant used a firearm. The trial court acquitted appellant of felony vandalism, based on a doubt whether the damage to the truck exceeded $400, and instead, it found him guilty of the lesser included offense of misdemeanor vandalism based on damage to the tail lights. The court acquitted appellant of two counts of false imprisonment (§ 236), after expressing doubt whether the detention near the trailer was sufficiently prolonged to constitute false imprisonment and whether the detention near the gate was instigated by appellant or a third party.
Hoef and Juarez lived together in an intimate relationship.
Appellant moved for a new trial. He argued that his right to use reasonable force to eject trespassers necessarily included a right to say threatening words. The court denied the motion. It stated that the facts were controverted and it had found that the victims were "more credible with regard to their version of what happened in terms of the unnecessarily prolonged and unnecessarily aggressive and excessive threats and force used against them on that date."
DISCUSSION
Appellant contends he should have been acquitted of making criminal threats because he acted in defense of his property to eject trespassers. We affirm because, even if Hoef and Juarez were trespassers, substantial evidence in the record supports a finding that appellant's threats were not reasonably necessary to eject them.
We must uphold the verdict if there is any substantial evidence to support it. (People v. Ledesma (2006) 39 Cal.4th 641, 723.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Solomon (2010) 49 Cal.4th 792, 811.) We view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Ledesma, supra, at p. 722.) We defer to the credibility determinations of the trier of fact. (People v. Richardson (2008) 43 Cal.4th 959, 1030.)
Appellant contends that Hoef and Juarez were trespassers and acted in violation of California Uniform Commercial Code section 9609, subdivision (b)(2), by remaining on the property after being told to leave. Whether or not they were on the property unlawfully is immaterial if appellant used excessive force to eject them.
California Uniform Commercial Code section 9609, subdivision (b)(2), permits a repossession agent to repossess property without judicial process only if it proceeds without breach of the peace.
An owner or occupant of land may use force to eject a trespasser, but there are limits. The occupant must usually give notice to leave. (Phelps v. Arnold (1931) 112 Cal.App. 518, 524; CALCRIM No. 3475.) Force may only be used if the trespasser does not leave within a reasonable period of time and if it would appear to a reasonable person that the trespasser poses a threat to the property or its occupants. (Civ. Code, § 50; CALCRIM No. 3475.) Even then, the occupant may use only the amount of force that a reasonable person in the same situation would believe was necessary to make the trespasser leave. (People v. Miller (1946) 72 Cal.App.2d 602, 606; CALCRIM No. 3475.) Use of excessive force, or an attempt to use excessive force, against a trespasser is unlawful. (People v. Heise (1933) 217 Cal. 671, 673 [Assault conviction sustained where lawful occupant, with axe in hand, ejected unarmed trespasser].)
Substantial evidence in the record supports a finding that, even if Hoef and Juarez were trespassers, threats to Hoef's life were not reasonably necessary to eject them. Hoef and Juarez testified that appellant did not give them any notice to leave before he pointed a rifle at Hoef's head and threatened to kill him. When they told appellant it was the wrong trailer and they were leaving appellant put his rifle to Hoef's forehead. Hoef said, "put the gun down. We are leaving.... [t]he trailer isn't what we are looking for, " and appellant responded, "I don't fucking care. I will kill you anyway." After Hoef said, "I am trying to leave. I am leaving right now, " appellant blocked his path and continued to hold the rifle to Hoef's head. This testimony provides substantial evidence that a reasonable person would have believed that Hoef and Juarez posed no threat to property or persons and that appellant used more force than was necessary to make them leave. Determination of the amount of force that is justified to maintain possession of property is within the province of the trier of fact (People v. Miller, supra, 72 Cal.App.2d at p. 606) as is the credibility of witnesses. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) We will not disturb the trial court's finding that appellant acted with unnecessary and excessive threats and force.
Appellant contends that our review should be de novo because the trial court committed legal error by failing to consider self-defense. We disagree. Appellant relies on the court's statement that it was not making "any characterization of a repossession company's conduct as a trespass or not a trespass." The court did not make this statement in reference to its verdict. It was explaining a bail decision; it allowed appellant to be released on his own recognizance while awaiting sentencing, over the prosecutor's objection, and explained that appellant's "greatest threat is to trespassers, not to outsiders outside the property." The court then said, "Please don't mischaracterize that as a trespass. I should say people coming onto his property. I am not making any characterization of a repossession company's conduct as a trespass or not a trespass. I am not addressing that issue." In any event, the question whether Hoef and Juarez were trespassers is immaterial because, even if they were, appellant was not entitled to use excessive force to eject them.
Appellant misquotes the court as referring to "any characterization of the repossession company's conduct as a trespass or not a trespass." (Italics added.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.