841 S.E.2d 371
Va. Ct. App.2020Background
- In October 2017 Pena and his cousin Lafferty suspected a run‑away minor (T.B.) of stealing roughly $5,000 in proceeds from their joint drug sales; Pena and others lured T.B. and her companion Imani to a meeting to recover the money.
- During the encounter Pena confronted Imani, patted him down, took a few hundred dollars, and shot Imani; Imani later died and Pena was indicted for first‑degree felony murder (and related robbery, conspiracy, and firearm charges).
- At trial Pena sought a jury instruction on the claim‑of‑right defense (that he acted under a good‑faith belief he had a legal right to the money), arguing it negated the intent element of robbery and thus the predicate felony for felony murder.
- The trial court refused the instruction as lacking more than a scintilla of evidence of a bona fide, good‑faith legal claim of right; the jury convicted Pena of first‑degree felony murder and attendant charges.
- On appeal the Court of Appeals affirmed, holding (1) there was insufficient evidence of a good‑faith legal claim of right and (2) as a matter of law one cannot have a bona fide legal claim to contraband or proceeds of criminal activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in refusing a claim‑of‑right jury instruction on robbery | Pena: evidence showed he subjectively believed he was reclaiming stolen money, so instruction warranted | Commonwealth: no good‑faith legal claim; money was drug proceeds and instruction would aid criminal profit | Affirmed: no more than a scintilla of evidence of a bona fide claim of right; instruction properly refused |
| Whether a person can have a bona fide legal claim of right to contraband or proceeds of crime | Pena: he honestly believed he was entitled to the money | Commonwealth: as a matter of law one cannot have such a claim; public policy forbids aiding criminals to profit | Held: as matter of law one cannot have good‑faith legal claim to contraband or proceeds; claim‑of‑right unavailable |
Key Cases Cited
- Butts v. Commonwealth, 145 Va. 800 (1926) (claim‑of‑right requires bona fide belief; sometimes a question for court)
- Pierce v. Commonwealth, 205 Va. 528 (1964) (taking under bona fide claim of right is not larceny/robbery despite violence)
- Groves v. Commonwealth, 50 Va. App. 57 (2007) (claim‑of‑right negates specific intent element; requires good faith)
- Johnson v. Commonwealth, 215 Va. 495 (1975) (robbery is offense against possession, not ownership)
- Zysk v. Zysk, 239 Va. 32 (1990) (courts will not assist participant in illegal act to profit from it)
- People v. Hendricks, 749 P.2d 836 (Cal. 1988) (refusal of claim‑of‑right instruction where defendant sought proceeds of illegal prostitution activity)