People v. Markbreiter
| Decision Date | 27 April 2021 |
| Docket Number | D076914 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROSS FENTON MARKBREITER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Burt Pines, Judge ). Affirmed.
Walk Free Law and Alana Yakovlev, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ross Fenton Markbreiter used a gun to threaten a repossession agent (victim) who had come to repossess a car after defendant made no payments on his loan for more than a year. At gunpoint, defendant forced the victim to release the car, took the victim's phone while he was calling the police, and drove the car away. Defendant appeals his conviction on several grounds, including instructional error, sufficiency of the evidence, alleged ineffective assistance of counsel, and abuse of discretion in sentencing. We affirm.
A jury convicted defendant of carjacking (Pen. Code,1 § 215, subd. (a), count 1), robbery (§ 211, count 2), assault with a semiautomatic firearm (§ 245, subd. (b), count 3), and attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1), count 4). The jury also found true allegations that defendant personally and intentionally used a firearm in the commission of the carjacking and robbery (§ 12022.53, subd. (b)), and personally used a firearm in connection with the assault and attempt to dissuade a witness (§ 12022.5, subd. (a)). The court denied probation and sentenced defendant to the low term of three years on count 1 (carjacking) with a concurrent middle term of three years on count 2 (robbery). It imposed and stayed sentences on counts 3 (assault with a semiautomatic firearm), and 4 (attempting to dissuade a witness). The court struck the firearm enhancements.
Defendant timely appealed.
Defendant purchased a car and financed it with a loan secured by the car. It was registered in his name, and he made the required payments for ayear to a year and a half, until the middle of 2016. He made no more payments on the loan after that, although he knew he was contractually obligated to do so. Defendant did not return the car. Rather, he continued to drive it.
On May 16, 2018, the victim, who was a licensed repossession agent, received an electronic repossession order for the car. The victim had a tow truck that was marked on both sides with the repossessor's license number. He drove the tow truck to defendant's address in Carlsbad, carrying with him his repossession license and the electronic order. The victim located the car, verified the license plate and VIN number, then attached the car to his tow truck and hoisted the rear of the car up off the ground.
Defendant came up to the victim and asked what he was doing. The victim said he was a repossession agent with an order to repossess the car due to lack of payments. Defendant said, "[Y]ou're not taking my car." He did not ask to see the victim's license or the repossession order.
Defendant went into his apartment and returned with a 9-millimeter semiautomatic firearm. He pointed the gun at the victim from about four feet away and told the victim to release the car from the tow truck. The victim agreed to do so. Defendant lowered the gun and held it at his side, a few feet from the victim, while the victim removed the car from the tow truck.
When he was on the other side of his truck from defendant the victim called 911. He was nervous, scared, and terrified. He was afraid he would lose his life. The victim told the dispatch operator that someone pulled a gun on him during a repossession. The victim had his phone up to his ear, talking to the dispatcher. Defendant saw him and said, "Are you asking to get shot?" Defendant walked up to the victim, held the gun up and aimed at the victim'schest from a foot away. He demanded the phone. The victim told him, "Don't take my phone." The call ended abruptly.
The victim finished releasing the car from the tow truck and drove his truck forward a bit from the car. He asked defendant if defendant would give him his phone back. Defendant said he would leave it on the sidewalk, but he was trying to crush the phone as he held it. Defendant drove off in the car, taking the phone with him.
Police arrived within about 10 minutes. They tracked the victim's phone and found the car. Defendant was sitting in the driver's seat. The police took defendant into custody. The victim's phone was on the passenger seat of the car. It was broken and not usable. The police also found a semiautomatic handgun in the center console. The gun was loaded and cocked with one round in the chamber and five more in the magazine.
Defendant testified. He denied threatening the victim with the gun. Defendant said that he was never contacted by the lender after he stopped making payments on the car. He claimed that he checked his credit report and it showed that the loan had been charged off. Defendant said he understood that to mean that the creditor had stopped collection efforts.
Defendant further testified that he saw someone at his car and asked that person what he was doing. The victim said he had a repossession order. Defendant testified that he asked to see the victim's identification and the repossession order, but that the victim refused to show him the documents. Defendant said he thought the victim was a thief who was taking his car, and for that reason went into his apartment to get his gun and returned with his gun holstered. He asked for his car back. He stated he did not point the gun at the victim when he asked for his car back.
Surveillance video shows that defendant held the gun out of its holster during parts of the encounter. Defendant testified that he put his gun away when the victim asked him to.
Defendant said when he saw the victim using his phone, he thought the victim was a criminal calling for backup. Defendant held his gun in his hand when he told the victim to hand over his phone. Defendant said he tucked his gun into his waistband to reach over and grab the phone from the victim. Defendant denied asking the victim if he wanted to be shot. Defendant said he intended to leave the victim's phone for him on the sidewalk, but that he forgot and drove off with it by mistake.
Defendant raises two issues on carjacking instructions that are both based on the same underlying theory: that carjacking is a crime against ownership and therefore defendant would not be guilty if he had a good faith belief that he had an ownership interest in the vehicle when he took it. First, defendant contends that the court erred in modifying the then existing standard CALCRIM instruction to delete its reference to a taking from the owner of the vehicle. Second, defendant claims the court erred in failing to give a claim-of-right-defense instruction sua sponte. Both claims fail because a claim of right is not a defense to the crime of carjacking.
Defendant moved to dismiss the carjacking count at the conclusion of the prosecution case-in-chief, arguing that the People had failed to prove that defendant had not taken his own car. The court denied the motion,concluding that carjacking is a crime against possession, not a crime against ownership.
When discussing instructions, defendant asked the court to give CALCRIM No. 1650 as written at that time, which stated in part, The prosecutor objected and asked the court to modify the form instruction to delete the element of taking of "a motor vehicle that was not his own." The court agreed with the prosecutor and modified the instruction by using a phrase from the predecessor instruction, CALJIC No. 9.46. The court instructed the jury:
The defendant did not specifically ask the court to give a claim-of-right defense instruction.
"A trial court must instruct the jury on general principles of law necessary for the jury's understanding of the case." (People v. Ramirez (2019) 40 Cal.App.5th 305, 307.) As part of the duty to instruct on the applicable principles of law, the court has a sua sponte duty to instruct on defenses relied upon by the defendant. (People v. Breverman (1998) 19 Cal.4th 142, 157.) "Defendants have a right to an instruction pinpointing their defense theory, but the court may refuse incorrect, argumentative, duplicative, or confusing instructions." (Ramirez, at p. 307.)
" 'Errors in jury instructions are questions of law, which we review de novo.' " (People v. Fenderson (2010) 188 Cal.App.4th...
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