California Criminal Jury Instructions (CALCRIM) (2017)

1863. Defense to Theft or Robbery: Claim of Right

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1863.Defense to Theft or Robbery: Claim of Right (Pen. Code,
§ 511)
If the defendant obtained property under a claim of right, (he/she) did
not have the intent required for the crime of (theft/ [or] robbery).
The defendant obtained property under a claim of right if (he/she)
believed in good faith that (he/she) had a right to the specific property
or a specific amount of money, and (he/she) openly took it.
In deciding whether the defendant believed that (he/she) had a right to
the property and whether (he/she) held that belief in good faith,
consider all the facts known to (him/her) at the time (he/she) obtained
the property, along with all the other evidence in the case. The
defendant may hold a belief in good faith even if the belief is mistaken
or unreasonable. But if the defendant was aware of facts that made that
belief completely unreasonable, you may conclude that the belief was
not held in good faith.
[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.]
[The claim-of-right defense does not apply to offset or pay claims
against the property owner of an undetermined or disputed amount.]
[The claim-of-right defense does not apply if the claim arose from an
activity commonly known to be illegal or known by the defendant to be
illegal.]
If you have a reasonable doubt about whether the defendant had the
intent required for (theft/ [or] robbery), you must find (him/her) not
guilty of <insert specific theft crime>.
New January 2006; Revised October 2010, August 2015, February 2016
BENCH NOTES
Instructional Duty
There is a split in authority about whether the trial court must instruct sua sponte
on the defense of claim of right. (See People v. Russell (2006) 144 Cal.App.4th
1415, 1429 [51 Cal.Rptr.3d 263] [sua sponte duty when claim of right supported];
but see People v. Hussain (2014) 231 Cal.App.4th 261, 268–269 [179 Cal.Rptr.3d
679] [no sua sponte duty to instruct on claim of right], following People v.
Anderson (2011) 51 Cal.4th 989, 998 [125 Cal.Rptr.3d 408, 252 P.3d 968] [no sua
sponte duty to instruct on accident].)
AUTHORITY
• Defense. Pen. Code, § 511; People v. Tufunga (1999) 21 Cal.4th 935, 952, fn.
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4 [90 Cal.Rptr.2d 143, 987 P.2d 168]; People v. Anderson (2015) 235
Cal.App.4th 93, 102 [185 Cal.Rptr.3d 128][third parties]; People v. Romo
(1990) 220 Cal.App.3d 514, 517, 518 [269 Cal.Rptr. 440].
• Good Faith Belief. People v. Stewart (1976) 16 Cal.3d 133, 139–140 [127
Cal.Rptr. 117, 544 P.2d 1317]; People v. Navarro (1979) 99 Cal.App.3d Supp.
1, 4, 10–11 [160 Cal.Rptr. 692].
• No Concealment of Taking. People v. Wooten (1996) 44 Cal.App.4th 1834,
1848–1849 [52 Cal.Rptr.2d 765].
• Not Available to Recover Unliquidated Claims. People v. Holmes (1970) 5
Cal.App.3d 21, 24–25 [84 Cal.Rptr. 889].
• Not Available to Recover From Notoriously or Known Illegal Activity. People
v. Gates (1987) 43 Cal.3d 1168, 1181–1182 [240 Cal.Rptr. 666, 743 P.2d 301].
• Claim of Right Defense Available to Aiders and Abettors People v. Williams
(2009) 176 Cal.App.4th 1521, 1529 [98 Cal.Rptr.3d 770].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 27, 36, 38.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.10[1][b], Ch. 143, Crimes Against Property,
§§ 143.01[1][d], 143.10[1][d] (Matthew Bender).
1864–1899. Reserved for Future Use
CALCRIM No. 1863 THEFT AND EXTORTION
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