P. v. Thomas

Filed 10/28/08 P. v. Thomas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

Christian Thomas appeals from a judgment that sentenced him to state prison for six years and eight months, after a jury found him guilty of second degree robbery (Pen. Code,  211, 212.5, subd. (c)), carjacking (Pen. Code,  215, subd. (a)), and three related offenses.[1] Thomas argues there is insufficient evidence to sustain the robbery and carjacking convictions because he did not use force or fear greater than necessary to take a vehicle from its owner. We disagree and affirm.

FACTS

On the afternoon of April 12, 2006, Thomas and his girlfriend were outside a Mervyns store in Fullerton, looking for a car to steal. Gladys Wason, 77, drove up and noticed two young people enjoying the sunshine next to the store. She parked nearby and assisted her companion into a transport chair. Wason locked the car, put the keys in the pocket of her sweater, and headed for Mervyns. As she was pushing the transport chair, Wason heard footsteps from behind and felt someone bump into her, reach down her side, and take the keys from her pocket. She saw the girl who had been with Thomas run to him, toss him the keys, and join him in a dash for her car.

Wason ran after them, yelling for help. Thomas got into the drivers seat but had not yet completely closed the door (his girlfriend entered on the passengers side). Wason testified I grabbed the door handle and . . . pulled the door open and I told him to . . . [] [g]et the hell out of my car. As Wason described the ensuing struggle, I attempted to keep opening . . . the door [] and . . . I just kept fighting to keep the car. She got the door open but Thomas tried to pull it shut again and I pulled it open [again]. Wason let go when she saw a police car approaching, and at that point he closed the door and it stayed shut. The struggle over the car was caught on videotape taken by Mervyns security cameras and introduced in evidence. After a chase, Thomas and his girlfriend were apprehended and arrested. In an interview with police officers after being read his rights, Thomas admitted he and his girlfriend were the individuals who took Wasons vehicle.

I

Thomas argues there was no robbery or carjacking, only theft, because the force or fear used to accomplish the offense was no more than needed to take the vehicle. The evidence is otherwise.

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (Pen. Code,  211.) The force required is something beyond what is needed to take the property (People v. Morales (1975) 49 Cal.App.3d 134, 139), and in deciding whether force was used, the jury may consider the physical characteristics of both perpetrator and victim. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709.) For example, a slight push to move a cashier aside so the perpetrator can reach into the cash register has been held sufficient force to sustain a conviction for robbery, since the perpetrator did not just brush the cashier as he reached for the money, but intentionally moved her out of the way. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246.)

Carjacking is the felonious taking of a motor vehicle in the possession of another, [or] from his or her person or immediate presence . . . 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, accomplished by means of force or fear. (Pen. Code,  215, subd. (a).) Although there are no cases defining the force or fear required for carjacking, the Legislature modeled the carjacking statute on the robbery statute (People v. Lopez (2003) 31 Cal.4th 1051, 1059) and in such circumstances the usual presumption is that the Legislature intended the same construction . . . . (Id. at p. 1060.) Thomas agrees the force or fear required for carjacking is the same as for robbery.

Robbery and carjacking are both continuing offenses that are proven if force or fear is used to prevent retaking of property initially obtained without either. Robbery begins from the time of the original taking until the robber reaches a place of relative safety, and [i]t is sufficient . . . that [defendant] used force to prevent the . . . retaking [of] the property and to facilitate his escape. (People v. Estes (1983) 147 Cal.App.3d 23, 28.) A like rule applies to carjacking. [M]ere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle. (People v. ONeil (1997) 56 Cal.App.4th 1126, 1131.)

Thomass theory is he did no more than close the car door so he could drive away, never pushing or touching Wason, and that was no more than the force needed to take the car. As he put it, [o]pening the vehicles door to get inside, and then shutting the door, is part [of] taking the vehicle. The problem with this argument is it ignores the facts.

Thomas did more than get in the car and drive away. Wason caught up with him when he still had the car door ajar, yanked it opened, and demanded he get out. When Thomas pulled the door shut, Wason managed to hang on and pry the door open a second time, only to relinquish possession when she saw a police car coming down the road. As Wason said, I just kept fighting to keep the car. The jury was entitled to find force was used where a young man engaged in a contest of strength with a 77-year-old lady over possession of her vehicle.

Thomas argues there was no evidence Wason relinquished the vehicle out of fear, so the convictions cannot be sustained on that theory. True, but it makes no difference. There was evidence he used force to retain the automobile and that is ample to support the jurys verdict.

II

Thomas contends the robbery conviction must be overturned because no force was used in taking the keys, and none in retaining the vehicle. The point is meritless. The absence of force in lifting the keys from Wasons pocket is immaterial.

Force was used in retaining the car, when Thomas engaged in a tug of war with Wason as he tried to shut the door and flee. The robbery was still in progress at that point, and [i]t is sufficient . . . that [defendant] used force to prevent the . . . retaking [of] the property and to facilitate his escape. (People v. Estes, supra, 147 Cal.App.3d at p. 28.)

Since the evidence supports the robbery and carjacking convictions, the judgment appealed from is affirmed.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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[1] The other offenses were evading a police officer while driving recklessly (Veh. Code,  2800.2), resisting and obstructing an officer (Pen. Code,  148 subd. (a)(1)), and hit and run causing property damage. (Veh. Code,  20002 subd. (a).)