P. v. Fallow

Filed 7/18/07 P. v. Fallow CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, judge. Affirmed in part, reversed in part.

A jury convicted Scott Lee Fallow of robbery (Penal Code^[1] 211, count 1); personal use of a firearm ( 12022.53, subd. (b), count 1 enhancement); attempted carjacking ( 215, subd. (a), 664, count 2); personal use of a firearm ( 12022.53, subd. (b), count 2 enhancement); and possession of a firearm by a felon ( 12021 subd. (a)(1), count 3).

The trial court sentenced Fallow to a total of 13 years as follows: a midterm of three years on count 1 with a ten-year enhancement for personal use of a firearm, and a concurrent term of two years for count 3. The court imposed and stayed the midterm of two years plus six months for the attempted carjacking conviction, and ten years for the additional firearm use allegation.

Fallow contends: (1) the trial court prejudicially erred by omitting the definition of "taking" from the standard CALJIC No. 9.46 instruction regarding carjacking and (2) insufficient evidence supported the attempted carjacking conviction. We reverse the count 2 conviction and its enhancement, but affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

On March 15, 2004, between midnight and 2:30 a.m., Nicole Bursky won $2,000 playing blackjack at Viejas Casino. As she played, she noticed that Fallow, Thomas DaSilva and Michael DaSilva each alternated watching her from three specific points in the casino.

At approximately 2:30 a.m., Bursky cashed in her chips and received $3,000. She put the money in her purse and left the casino at 2:45 a.m. As she walked to her car, she noticed Michael following her into the parking lot.

While Bursky drove home on the freeway, she noticed a truck following her. The truck took an off ramp from the freeway but immediately returned to the freeway and stayed behind her after she merged onto another freeway and as she exited towards her home. When she approached the stop sign at the end of the off-ramp, the truck came around her on the left side, cutting her off and forcing her to slam on her brakes. She drove around the truck, and recognized the driver, Fallow, from earlier that night in the casino. Fallow opened his door as though he were about to get out, waved to signal an apology, and got back in his truck.

Fallow, now in front of her on a road narrowed to one lane in each direction, slammed on the brakes and turned the truck sideways, forcing Bursky to stop. Three men wearing ski masks and carrying shotguns got out of the truck; surrounded her car; and banged on the car windows with their guns. Bursky recognized Fallow's ponytail and clothing from the earlier stop.

Fallow said, "Open the fucking door." Bursky opened her door and Fallow continued, "give me the fucking money." She threw her purse at Fallow, who caught it and said, "take the fucking keys out of your car." When Bursky told him the keys were stuck in the ignition, he put the shotgun to her stomach and said, "take the fucking keys out." After Bursky repeated that she could not remove the keys, Fallow kept the gun to her stomach and leaned over her to get the keys. Bursky slipped out the side of the car and escaped into the bushes. As Fallow persisted with the keys, one of his companions warned him that a car was coming. All three men got into the truck and sped away with their lights off. Bursky later identified Fallow, Michael DaSilva and Thomas DaSilva in separate police lineups.

Fallow testified that he was not in the truck with Michael and Thomas when they followed Bursky's car and was not aware of their intent to rob her at gunpoint. Fallow "guessed" he was at his father's house at the time of the robbery.

DISCUSSION

We agree with Fallow's contention that the trial court prejudicially erred when it omitted the definition of "taking" from CALJIC No. 9.46.

"Trial courts only have a sua sponte duty to instruct on 'the general principles of law relevant to and governing the case.' [Citation.] 'That obligation includes instructions on all of the elements of a charged offense' [citation], and on recognized 'defenses . . . and on the relationship of these defenses to the elements of the charged offense.' " (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) The California Constitution guarantees a defendant's "right to have the jury determine every material issue presented by the evidence" and addresses the prejudicial effect of instructional "misdirection of the jury." (People v. Flood (1998) 18 Cal.4th 470, 480-481; Cal. Const., art. VI, 13.) "[W]rongly omitted instructions may . . . 'misdirect' the jury's deliberations." (Flood, supra, at p. 487.) Instructional errors that remove an element of a crime from the jury's consideration may be analyzed in the "context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial" under a harmless-error analysis. (Id. at pp. 490, 500.) Such errors are reviewed to determine whether the verdict would have been the same beyond a reasonable doubt had the jury been properly instructed. (Id. at p. 499; Chapman v. California (1967) 386 U.S. 18, 23-24.)

Carjacking is "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession by means of force or fear." ( 215.) "Taking" requires the vehicle be moved from the possessor. (People v. Lopez (2003) 31 Cal.4th 1051, 1063.)

Here, the court's instruction excluded the following sentence: "The words 'take' or 'taking' require proof of [(1)] taking possession of a motor vehicle, and (2) movement of the vehicle, slight or otherwise." Taking is an essential element of carjacking; therefore, the trial court prejudicially erred in failing to instruct the jury on it. (Lopez, supra,31 Cal.4th at p. 1058; Flood, supra, 18 Cal.4th at p. 480.) Because the jury was not instructed that movement of the vehicle was an element of carjacking, the jury was ill-equipped to determine whether there was an attempted carjacking in this case. The jury exhibited its lack of clarity on this point by asking the court during deliberations: "Does the possession of the keys of the vehicle equal possession of the vehicle, by law?" The court responded, "This is a question to be resolved by the jury, dependent upon the evidence and applying the instructions of law already provided. For the [c]ourt to answer this question would improperly invade the province of the jury." It is clear from the jury's question that it was confused about the elements of the offense.

Under Chapman, supra, 387 U.S. 18, it appears beyond a reasonable doubt that the trial court's instructional error contributed to the jury's verdict. (Flood, supra, 18 Cal.4th at p. 504.) In light of our conclusion that the trial court committed prejudicial instructional error, we need not decide whether sufficient evidence supported the carjacking conviction.

DISPOSITION

The conviction on count 2 and the accompanying enhancement is reversed; in all other respects the judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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^[1] All further statutory references are to the Penal Code.