THE PEOPLE, Plaintiff and Respondent,


ADAM RANALD FAIRBAIRN, Defendant and Appellant.


2d Crim. No. B218309.


2011 Cal. App. LEXIS 2167


Court of Appeals of California, Second District, Division Six.



Filed March 23, 2011.


Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.




YEGAN, Acting P.J.

Adam Ranald Fairbairn appeals from the judgment entered after a jury convicted him of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2))1 with a firearm use enhancement (§ 12022.5, subd. (a)), discharge of a firearm with gross negligence (§ 246.3), and brandishing a firearm (§ 417, subd. (a)(2)). The trial court suspended imposition of sentence and granted five years probation with 365 days county jail. We affirm.


Viewing the evidence in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578), the record shows that appellant, an attorney, shot at two men attempting to repossess appellant’s Chevy Avalanche pickup truck.

On June 14, 2006, General Motors Acceptance Corporation (GMAC) faxed a repossession order to County Adjustment Bureau, a licensed independent repossession agency, to repossess the vehicle. Appellant was $1,796.84 in arrears and had a $12,379.11 balance on the truck loan. In May 2006, GMAC made numerous attempts by telephone and letter to contact appellant.

Michael Katsaros, a licensed repossession agent, and trainee Todd Bruton drove a tow truck to appellant’s residence in rural San Miguel. The truck had a state repossession agency number printed on the doors. It was equipped with a lift boom, permitting Katsaros to lift and tow a vehicle without getting out of the tow truck. The lift boom was activated by a remote control device inside the truck cab.

Katsaros and Bruton arrived just before dusk. The residence, located on 40 acres, was not fenced or gated but had a “private property” sign near the driveway. The truck was parked in a horseshoe-shaped driveway in front of a detached three-car garage.

Katsaros backed up, positioned the lift boom, and raised the back end of the truck. Katsaros was about to get out and contact appellant when appellant exited the house and shot at them. Wearing only socks and underwear, appellant ran towards the truck, lowered the rifle, and fired a shot over the truck roof. Katsaros and Bruton ducked.

Appellant stood next to the passenger door, pointed the smoking rifle at the two men, and screamed “I know what you guys are here for.”

Katsaros identified himself and said he was there to repossess the vehicle. Katsaros complained that it was not right to fire a gun at people. Appellant was belligerent and said “I don’t care.” He called Katsaros and Bruton “lowlife pieces of shit” and ordered them to leave his property. Katsaros lowered the truck to the ground. Before leaving, Katsaros used his cell phone to take a photo of appellant standing next to the tow truck with the rifle.

Katsaros drove away and called 911. As he spoke to the dispatcher, appellant’s wife drove up, said she and appellant were lawyers, and that she would “blow them away” if they returned.

Appellant called the sheriff 50 minutes later and reported that two guys were trying to steal his vehicle. Appellant was advised that deputies had already been dispatched and to step outside without the rifle. During the call, Watch Commander Sergeant Himmerlrich said that the dispatcher had received a report that several shots were fired. Appellant replied, “that’s a wonderful story.”

Officers arrested appellant and booked into evidence a Winchester . 44 magnum lever-action rifle with an expended round in the chamber and seven live rounds. A spent shell casing was on the driveway.

Early the next morning, appellant posted bail and called GMAC. He “wired” a loan payment before GMAC agreed to accept the payment.

At trial, appellant claimed he was defending his home and property from trespassers. Appellant said that the tow truck had no front license plate or emblem and that Katsaros and Bruton looked like they were stealing his vehicle. Appellant denied pointing the rifle at the men and claimed that he yelled “Get the hell off my property” five times before firing the first shot. Appellant said that he walked over to the tow truck and argued with Katsaros for two minutes before firing the second shot. Katsaros testified that the second shot was fired four or five seconds after the first shot while appellant “was still on a run. . . .”

Defense of Habitation — Trespasser Defined

The jury, at appellant’s request, was instructed that a property owner may use reasonable force to eject a trespasser.2 (CALCRIM 3475.) Appellant agues that the trial court erred in not defining “trespasser.” Appellant waived the error by not requesting an amplifying or clarifying instruction. (People v. Cleveland (2004) 32 Cal.4th 704, 750; People v. Arias (1996) 13 Cal.4th 92, 170-171.) Trial courts have no sua sponte duty to define words in common usage, absent a request. (People v. Adams (2009) 170 Cal.App.4th 893, 900.)

Even if instructional error occurred, the error was harmless. Appellant yelled, “Get off my property. You’re trespassing” and shot at the men. An instruction defining the technical meaning of trespasser would have confused the jury. The touchstone of the habitation defense (i.e., the right to defend one’s castle) is the reasonableness of appellant’s actions. (§ 197, subd. (2); 1 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Defenses, § 78, pp. 414-415.) “[D]efense of habitation applies only if the defendant’s belief that a trespass is occurring or about to occur is reasonable. [Citations.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361.)

Appellant speculates that the jury may have believed the men had a contractual right to enter the property. The prosecutor intimated that defense of habitation did not apply because GMAC had a contractual right to repossess the vehicle.3 Appellant did not object or request a curative instruction, thereby waiving the contention. (People v. Ochoa (1998) 19 Cal.4th 353, 427.) The trial court instructed that the arguments of counsel was not the law. (CALCRIM 200) “You must follow the law as I explain it to you . . . . If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions.” (CALCRIM 200.) It is presumed that the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.)

Appellant argues that the contractual right to enter property and repossess a vehicle may be unilaterally revoked by the debtor, a defense theory that should have been set forth in an instruction defining trespasser. The jury, however, received a separate defense instruction on an owner’s right to use reasonable force to protect property. (See infra)

The failure to instruct on the technical meaning of “trespasser” was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 9, 18 [144 L.Ed.2d 35, 47, 53]; People v. Flood (1998) 18 Cal.4th 470, 502-503.) Appellant admitted that he ordered the men off his property and fired two shots. There was no evidence that the men were armed, threatened anyone, or even got out of the tow truck. “[T]he intentional use of deadly force merely to protect property is never reasonable. Accordingly, . . . the intentional use of force can never be justified by defense of habitation alone. The defendant must also show either self-defense or defense of others, i.e., that he or she reasonably believed the intruder intended to kill or inflict serious injury on someone in the home. [Citations.]” (People v. Curtis, supra, 30 Cal.App.4th at p. 1360.)

CALCRIM 3476: Defense of Property

Appellant argues that the trial court erred in modifying the defense of property instruction (CALCRIM 3476) to delete the words “or possessor.”4 As modified, the instruction stated that “[t]he owner of personal property may use reasonable force to protect that property from imminent harm.” It correctly stated the law. (See e.g., People v. Corlett (1944) 67 Cal.App.2d 33, 53, disapproved on other grounds in People v. Carmen (1951) 36 Cal.2d 768, 775-776.)

Case law provides that words in an instruction require no clarification when they are of common use and knowledge. (People v. Hardy (1992) 2 Cal.4th 86, 153.) The same principle applies here. Appellant did not object or request an amplification of the instruction, forfeiting any claim of instructional error. (Ibid.; People v. Welch (1999) 20 Cal.4th 701, 757.)

Forfeiture aside, there is no reasonable likelihood that the jury misunderstood the instruction. Appellant asserts that the jurors may have believed the instruction did not apply because he still owed GMAC money. The word “owner,” as set forth in CALCRIM 3476, was not used in a technical sense peculiar to the law. (See e.g., People v. Estrada (1995) 11 Cal.4th 568, 574.) Appellant told the men: “I paid for my truck. Get off my property. You’re trespassing.” No reasonable juror would construe CALCRIM 3476, as modified, to mean that appellant was not the owner. (People v. Frye (1998) 18 Cal.4th 894, 957.) Nor is there any reasonable likelihood the jury applied the instruction in a way that violates the constitution. (Ibid.; Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].)

“The meaning of instructions is no longer determined under a strict test of whether a `reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a `reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instruction given, the entire record of trial, and the arguments of counsel. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Defense counsel told the jury: “You have the right to defend your property. You have the right to keep trespassers off your property.” Counsel argued that the CALCRIM 3475 and 3476 instructions controlled because appellant was defending his home and property. “That’s the jury instructions. You’ve got them. [¶] Now, the question is: Did he use reasonable force?”

The failure to instruct that the owner “or possessor” of property may use reasonable force to protect his or her property was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Harris (1994) 9 Cal.4th 407, 424-425.)


Appellant asserts that the trial court erred in sustaining hearsay objections to his daughter’s testimony. Defense counsel asked 14-year-old Phoebe Fairbairn what appellant did after he walked outside with the rifle. Phoebe replied that appellant “walked outside and he had the gun in the air, and he came out and he said, `what are you doing on my property? You’re trespassing. This is private property.”

The trial court sustained a hearsay objection. Defense counsel then asked: “After he made the statement on the front porch, what did your dad do at that point?” Phoebe responded, “He fired a round into the air, like, up into the air, and said — made a statement that `you are trespassing, this is private property.'”

The trial sustained another hearsay objection and ruled that “[a]nything after he fired a round into the air will be stricken.”5

Appellant asserts that the statements are admissible to prove an operative fact, to explain why appellant had a conversation with the men, and to show the statements’ effect on the men. Appellant, however, did not offer the statements for a non-hearsay purpose and is precluded from raising the issue on appeal. (People v. Wallace (2008) 44 Cal.4th 1032, 1059-1060; People v. Ramos (1997) 15 Cal.4th 1133, 1178.) “Evidence Code section 354, subdivision (a), requires the proponent [of the evidence] make known to the court the `substance, purpose, and relevance of the excluded evidence. . . .’ This requirement applies equally to establishing a hearsay exception. [Citations.]” (Ibid.)

Nor was appellant prejudiced by the evidentiary rulings. The daughter’s description of the events was consistent with appellant’s testimony. Appellant was permitted to fill in the blanks and tell the jury what he said to the men. “`[O]rdinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’ [Citation.] Defendant has failed to demonstrate any infringement, particularly since all of the excluded evidence would only have served to corroborate other testimony informing the jury of the same or comparable facts. [Citations.]” (People v. Ramos, supra, 15 Cal.4th at p. 1178.)

Unanimity Instruction

Appellant finally argues that the trial court erred in not instructing that the jury must unanimously agree that appellant was guilty of a specific crime. (CALCRIM 3500.) A unanimity instruction is not required where the offenses are based on a continuous course of conduct and the acts are so closely connected in time as to form part of one transaction. (People v. Maury (2003) 30 Cal.4th 342, 423.) “The `continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

Appellant fired two shots in quick succession at the men. Appellant claimed that he was protecting his property from trespassers, a defense the jury soundly rejected. “`Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.]'” (People v. Curry (2007) 158 Cal.App.4th 766, 783.)

The judgment is affirmed.

We concur:





1. All statutory references are to the Penal Code unless otherwise stated.


2. The jury was instructed: “The owner of a property may request that a trespasser leave the property. If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to the property, the owner may use reasonable force to make the trespasser leave. [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. [¶] When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of Counts 1 through 5.


3. The prosecution argued “Gates and fences, it’s a nonissue . . . . If the defendant in this case wasn’t Adam Fairbairn, who was under a contractual obligation to G.M.A.C. to make his car payments, and all of a sudden Katsaros and Bruton ended up at some other guy’s house, then maybe the gates and defenses would matter because there would be some question about, well, were they at the right house? They were at the right house because that’s where the truck was. [¶] It’s immaterial. It’s not a material issue.”


4. The instruction stated: “The owner of personal property may use reasonable force to protect the property from imminent harm. [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm. [¶] When deciding whether the defendant used reasonable force, consider all the circumstances as they were know to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable to protect property from eminent harm. If the People have not met this burden, you must find the defendant not guilty of Counts 1 through 5.”


5. Phoebe was also asked: “Could you see what your dad was doing? [¶] A. Yes, he was talking to them. [¶] Q. Okay. What happened at that point? [¶] A. Um, after that, they exchanged whatever they were saying, and he was upset, so he said `Get off of my property. You have no right to be here. This is private property. You’re trespassing.”

The trial court sustained hearsay and speculation objections.

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