P. v. Shaw CA4/3

Filed 6/17/13 P. v. Shaw CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046900

v. (Super. Ct. No. 11NF0274)

ELMORE DEAN SHAW, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of robbing Randall Yerton after Yerton refused to go through with a drug deal appellant had proposed to him. Appellant contends the trial court prejudicially erred in failing to instruct on the lesser included offense of grand theft person and on the claim-of-right defense. We disagree and affirm the judgment. FACTS During the summer of 2010, Yerton occasionally purchased small amounts of marijuana from appellant. Most of the transactions took place near the motel where Yerton lived in Anaheim. Yerton would pay appellant at the time appellant tendered the marijuana, and they never had any problems doing business that way. However, one day in October 2010, appellant asked Yerton to give him $40 up front for some marijuana. Against his better judgment, Yerton gave appellant the money expecting appellant would then go get the marijuana and give it to him. But appellant didn‟t deliver the goods that day, nor did he return any of Yerton‟s phone calls over the next few weeks. Yerton felt burned and regretted his decision to give appellant his money up front. On November 29, 2010, appellant called Yerton and told him he could get him half a pound of marijuana in Compton for $200. Yerton said he was interested, but he told appellant he wanted to finish up their old business first: He wanted appellant to give him the $40 worth of marijuana he had already paid for before they did any more deals together. Appellant said he understood. He told Yerton to meet him at the 99¢ Store near his motel, and he would give him the marijuana he owed him. Then, if Yerton had the $200, they could go get the additional half pound in Compton. Yerton said he had the money, but when he left his motel room he only had a few dollars on him. He had no intention of giving appellant any more money or going to Compton with him. The only reason he said he had the $200 was so appellant would meet with him and give him the marijuana he already owed him.