People v. Tufunga

• Decision Date: 15 November 1999
• Docket Number: No. S072486.,S072486.
• Citation: 987 P.2d 168,90 Cal.Rptr.2d 143,21 Cal.4th 935
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Halaliku Kaloni TUFUNGA, Defendant and Appellant.

90 Cal.Rptr.2d 143

987 P.2d 168

21 Cal.4th 935

The PEOPLE, Plaintiff and Respondent, v. Halaliku Kaloni TUFUNGA, Defendant and Appellant.

No. S072486.

Supreme Court of California.

November 15, 1999.

Cliff Gardner, San Francisco, under appointment by the Supreme Court, and Stephen M. Gallenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Eric S. Multhaup, Mill Valley, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman, Christopher W. Grove and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230 (Blackstone).) Since robbery was viewed as an aggravated form of larceny, it was likewise subject to the same claim-of-right defense. (Id. at pp. 241-243.)

In People v. Butler (1967) 65 Cal.2d 569, 55 Cal.Rptr. 511, 421 P.2d 703 (Butler), we reaffirmed that a claim-of-right defense can negate the requisite felonious intent of robbery as codified in Penal Code section 211¹ and extended the availability of the defense to forcible takings perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated.

In light of the strong public policy considerations disfavoring self-help through force or violence, including the forcible recapture of property, we granted review in this case to consider whether claim of right should continue to be recognized as a defense to robbery in California. Since Butler was decided over 30 years ago, courts around the nation have severely restricted, and in some cases eliminated altogether, the availability of the defense in prosecutions for robbery. As will be explained, however, the "felonious taking" required for robbery under section 211, as well as that for theft under section 484, is a taking accomplished with felonious intent, that is, the intent to steal, a state of mind that California courts for over 150 years have recognized as inconsistent with a good faith belief that the specific property taken is one's own. When our Legislature incorporated this mental state element into the definition of robbery upon codifying the offense in 1872, it effectively recognized claim of right as a defense to that crime. This court is therefore not free to expand the statutorily defined mens rea of robbery by eliminating claim of right as a defense altogether on policy grounds. (§ 6; In re Brown (1973) 9 Cal.3d 612, 624, 108 Cal.Rptr. 465, 510 P.2d 1017.)

Since the Legislature incorporated the claim-of-right doctrine into the statutory definition of robbery over a century ago, the question whether it continues to reflect sound public policy as we enter the 21st century must be addressed to that body and not to this court. (Cal. Const., art. III, § 3 [guaranteeing the separation of powers of the legislative and judicial branches].) Nonetheless, as will further be explained, we find nothing in the language of section 211 to suggest the Legislature intended to incorporate into the robbery statute Butler's broad extension of the claim-of-right defense to forcible takings perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated. To the extent Butler's expansion of the claim-of-right defense in that regard is unsupported by the language of the robbery statute and contrary to sound public policy, it is overruled.

I. FACTUAL AND PROCEDURAL BACKGROUND

An amended four-count information charged defendant Halaliku Kaloni Tufunga with assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1)), residential robbery (§§ 211-212.5, subd. (a)), spousal abuse (the victim being the mother of his child) (§ 273.5), and making terrorist threats (§ 422) based on an episode of violence against his former wife, Shelly Tufunga. A jury found him guilty as charged on all but the first count (assault with a deadly weapon or force likely to produce great bodily injury), on which it convicted him of the lesser offense of battery (§ 242). An allegation that defendant had used a deadly or dangerous weapon (scissors) (§ 12022, subd. (b)) was found true in connection with the conviction of making terrorist threats, but not true in connection with the conviction of spousal abuse. Defendant was sentenced to state prison for the middle term of four years for robbery plus a subordinate term of one year for spousal abuse, with the enhancement finding stricken and all remaining terms to run concurrent with the aggregate five-year prison sentence.

Shelly Tufunga (Shelly) testified that around 5:00 p.m. on January 16, 1996, defendant, who is her former husband, his first wife Pelenaise (or Pele), and his daughter Lokelomi (or Loni) from that marriage came to Shelby's residence, pushed their way inside, and started yelling obscenities at her. Pele and Loni accused her of having made derogatory comments about Pele's younger daughter Helen's sexual promiscuity.

Defendant pushed Shelly to the floor and kicked her in the hip and thigh. He then threw her onto the couch and ordered the other women out of the residence, saying he would "take care of her. After they left, defendant straddled Shelly on the couch, slapped and hit her, grabbed a pair of nine- or ten-inch scissors and, making overhead stabbing motions toward her face, forehead and neck, said he was going to "mess up her face," shove the scissors up her "big fat ass" and "make it so that nobody would be able to look at" her. Afraid for her life, Shelly begged him to stop. She dodged stabs at her eyes but suffered scratches to her forehead, neck and arms before defendant finally stopped, put the scissors down, and got off of her. He continued to yell, at one point breaking a lamp in the home. Shelly's mother Josephine arrived at the house while defendant was still there. Initially unaware of the fracas, she handed Shelly $200 in cash for Shelly to use to purchase medicine and vitamins for her. Shelly testified she kept track of her mother's finances and routinely purchased vitamins and medicines the mother needed for her illness. Shelly put the money down on the coffee table, excused herself, and retired to the bathroom. When she reemerged, Josephine noticed her face was bruised, said, "My God, what happened?," and confronted defendant. Reminding him that she had said she was not going to stand for any more of this, Josephine picked up the phone to call the police. Defendant screamed at her and grabbed her by the arm, knocking the phone out of her hand. When Shelly intervened, defendant grabbed Shelly by the neck, shaking and choking her while screaming at them both.

Defendant then ran out the front door. Josephine yelled, "Shelly, he took the money," and tried to stop him. Shelly ran outside, wrote down the license number of the car defendant was driving, and called 911. That evening she filed a police report detailing the incident. After the incident but prior to his arrest, defendant returned to Shelly's apartment on several occasions; she did not call the police at those times out of fear for her safety.

Jurors saw photos of Shelly's injuries taken that same day. Responding police officers testified she was crying and appeared bruised and scratched. She reported that defendant had held the scissors against the bridge of her nose. She thought he had taken the money off the couch.

Shelly testified further that in April 1995 she had gotten a restraining order against defendant after being forced to move into a battered women's shelter with her daughter for a month because he was physically hitting and abusing her. At that time defendant had been coming over to her apartment, kicking the door in, hitting and pushing her, and wrecking the place.

Josephine also testified at trial, corroborating most of Shelly's account. She recalled that when defendant grabbed the phone he had unplugged it and threatened to kill her. When he choked Shelly, Josephine hit him on the head with the phone, without effect. Josephine thought Shelly had the $200 in her hand when she returned from the bathroom and dropped it on the table as defendant started choking her. Defendant hit Shelly a couple of times, grabbed the money off the table and left, pushing Josephine when she tried to stop him. Josephine called the police after defendant ran from the apartment.

Defendant testified in his own behalf and, after acknowledging prior felony convictions for forgery and grand theft, gave a different account of the incident leading to his arrest. He, and occasionally his daughters as well, had been living in Shelly's apartment around that time (Shelly testified defendant occasionally stayed at her home against her will, explaining defendant was very big and that she could not stop him from coming over). On the date in question he was paid $200 in cash by his employer/relative Hermasi Latu, who testified for the defense to corroborate that fact. Defendant claimed he knew Shelly had a bill due on the 19th of the month and had promised to bring her money to help with it. He brought the $200 over to Shelly's apartment that afternoon and put it down on the coffee table, stating it was to help pay for the bill. He claimed he and Shelly were watching television without incident when his former wife Pele and their daughter Loni arrived and the argument ensued. Defendant testified he told Pele...