P. v. Norwood

Filed 10/19/06 P. v. Norwood CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Brandon A. Norwood was convicted by jury of one count of carjacking. (Pen. Code, § 215, subd. (a).)^[1] The jury found not true the allegation that he had personally used a handgun in the commission of the offense. (§ 12022.53, subd. (b).) Appellant was sentenced to the middle term of five years in state prison. He claims that there was insufficient evidence to support his conviction. We affirm.

FACTS

Prosecution Evidence

1) Trial Testimony of David Christmas

At approximately 7:00 a.m., David Christmas (Christmas) drove his Chevy Suburban (SUV) to a gas station on Imperial Highway. He parked it with the engine running and the driver's side door open. He walked to the cashier, 12 to 15 feet away, to get change to put air in one of his tires. Three or four people were ahead of him in line. He looked back and saw appellant run from the pumps and get into the SUV. Christmas ran towards the driver's door and was two to three feet away when appellant pointed a revolver at him and said, "Get back."

Appellant put the SUV in reverse and backed out of the lot. Christmas was scared and jumped out of the way to avoid being hit. Appellant continued to back across Imperial Highway, spun the vehicle around and drove away. Christmas panicked and ran into the street. He caught the attention of a driver who stopped to give him a ride. They tried to follow appellant, but could not keep up because he kept running red lights. The driver saw a patrol car and drove towards it.

2) Testimony of Officer Edward Kellogg

Los Angeles City police officer Edward Kellogg was on duty when Christmas flagged him down. He told Kellogg that he had been "robbed of his vehicle" at a gas station on Imperial Highway. Christmas reported that he had been fueling his SUV at the gas station when appellant approached him with a revolver and told him to "get back." Kellogg testified that Christmas was "hysterical" and "demanding" and wanted the officers to chase his SUV.

3) Remaining Prosecution Evidence

Officer Moreno interviewed Christmas concerning the offense. Christmas told Moreno that he drove close to the service window at the gas station to ask if he needed to buy a token for the air/water machine. Christmas was standing in the open doorway of his SUV, when appellant approached him. Christmas asked, "What's up?" and appellant pointed a small blue steel revolver at Christmas's chest and said, "Get back." Christmas stepped away from the SUV.

Appellant got into the SUV, backed it out of the gas station onto Imperial Highway, facing westbound in the eastbound lanes. He continued to drive in reverse for approximately 50 feet, made a U-turn at a high rate of speed and continued westbound. Christmas ran into the street and flagged down a driver. They followed the SUV but soon lost sight of it.

A security guard for Smart and Final testified that, on the morning of the offense, he drove into the store parking lot and saw a Suburban. Appellant was inside the SUV, his face covered with a bandana. After learning that appellant had been parked in the lot for over an hour, the guard called the police. Appellant entered the store and left through an emergency exit. The police arrested him outside the store.

Defense Testimony

Appellant testified that he was standing in the gas station and saw Christmas park his SUV approximately 40 to 50 feet away. Christmas left the engine running and the door open and walked to the cash register. Appellant got into the SUV, closed the door, drove in reverse out of the lot and across Imperial Highway. Christmas never looked at appellant and did not notice him until appellant was leaving the lot. Christmas began running towards his SUV, but never came closer than 20 feet.

Once on the highway, appellant spun around and drove away. He did not have a gun and has never owned a gun. Appellant drove to Smart and Final and parked in the lot. He saw the police coming, so he got out of the car and walked into the store to avoid arrest.

DISCUSSION

Appellant contends there was insufficient evidence of the use of force or fear to sustain his conviction of carjacking. He also claims that Christmas was not a credible witness because his statements to the police were inconsistent with his trial testimony.

"On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) "'[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. . . . [W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Carjacking

Carjacking is the taking of a motor vehicle in the possession of another from that person's presence against his or her will, by force or fear, with the intent to temporarily or permanently deprive the person of possession. (§ 215, subd. (a);^[2] People v. Hill (2000) 23 Cal.4th 853, 858-859.) The carjacking statute is modeled on the robbery statute, section 211. (People v. Lopez (2003) 31 Cal.4th 1051, 1059; see generally In re Travis W. (2003) 107 Cal.App.4th 368, 374.) The elements of robbery are the felonious taking of personal property in the possession of another, from his person or immediate presence, by force or fear, with the intent to permanently deprive the person of possession. (§ 211;^[3] Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)

"[T]he Legislature intended to treat carjackings just like robbery with two exceptions . . . . " (In re Travis W., supra, 107 Cal.App.4th at p. 376.) Carjacking requires an intent to temporarily or permanently deprive the owner of property, while robbery always requires an intent to permanently deprive a person of property. Carjackings only involve vehicles, while robbery involves any type of property. (Ibid.)

In enacting section 215, the legislature recognized that '''[c]arjacking is a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large.'" (People. v. Hill, supra, 23 Cal.4th at p. 859.) "[S]erious potential for harm . . . exists whenever there is a confrontation between the taker of a vehicle and the victim . . . ." (People v. O'Neil (1997) 56 Cal.App.4th 1126, 1133.)

Force or Fear

Appellant claims that, because the jury did not find that he used a weapon in the commission of the offense, there was no evidentiary basis for a finding of force or fear. There are no cases which define force or fear for the purposes of section 215; thus we look to the authorities interpreting those elements under the robbery statute. Whether the crime was accomplished by the use of force or fear is a factual question for the jury. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) The terms "force or fear" have no technical meaning and are presumed to be within the understanding of the jurors. (Id. at p. 1708 [evidence of force established where defendant shoved pregnant victim, then snatched purse from her arm].)

To establish the element of fear, the victim need not testify that he or she was afraid. (See People v. Mungia, supra, 234 Cal.App.3d at p. 1710, fn. 2.) There need only be evidence from which it can be inferred that the victim felt fear and that the fear allowed the crime to be accomplished. (Ibid.) Fear may be generated by words, actions or the surrounding circumstances and it may arise after the taking. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772 [victim's fear arose after defendant grabbed bag from her shoulder].)

Section 215 does not require that the use of force or fear be contemporaneous with gaining possession of the vehicle. (People v. O'Neil, supra, 56 Cal.App.4th at p. 1131.) "[V]ehicle 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." (Ibid.) In O'Neil, the victim was inside his house when the defendant entered the victim's truck and began backing up. The victim confronted the defendant and jumped into the truck bed. The defendant screamed at the victim, causing him to become fearful and leave the truck bed and the defendant drove the truck away. The defendant was convicted of carjacking, even though the victim's fear arose after the defendant had gained possession of the truck.

According to Christmas's trial testimony, he saw appellant jump into his SUV. When he ran towards it, appellant pointed a revolver at him and said, "Get back," then drove quickly out of the lot onto the highway. From this evidence the jury could have inferred that Christmas felt fear, and his fear allowed the crime to be accomplished.

Jury's Inquiry into Elements of Offense

Appellant contends that the jury was confused about the force or fear requirement because it sent a note to the judge inquiring "What is the definition of 'taken by force or fear' (Item number 4 in carjacking)."^[4] Without waiting for an answer, the jury rendered its verdict. After the jury was discharged, the court stated, "I was somewhat surprised. I would have guessed that they would have returned a verdict of a lesser related [offense] without the gun. . . . [T]hey must have believed that there was sufficient fear or violence."

At sentencing, the court stated, "I will defer to the jury and their findings that a weapon was not used but certainly by definition there was force or fear, only because I think the victim in this particular case did approach the vehicle. Had he jumped into the vehicle, had he taken off and had he driven without any sort of interaction with the victim, then I think clearly either that or joy-riding, or he would have had a grand theft auto. I believe that there was an encounter and that the victim did back off because of fear. . . . He certainly had some apprehension of harm to himself. I believe that that was sufficient."

Appellant argues that the jury's question to the court, combined with its not true finding on the personal firearm use allegation, indicates it doubted whether he had used force or fear in the commission of the offense. We disagree. As suggested by the trial court, the jury could have inferred that appellant's conduct towards Christmas caused him to withdraw. That the jury did not wait for an answer before rendering its verdict does not indicate it doubted that appellant used force or fear. It is more likely that the jury resolved its question without requiring further guidance from the trial court.

Appellant does not address the issue of force in any detail, arguing only that, because the jury did not find that he used a firearm, it must have rejected the force requirement and convicted him on the theory that appellant obtained the SUV through the use of fear alone. We disagree.

Christmas testified that he had to jump back to avoid being hit by his SUV as it left the lot. Appellant drove at a high rate of speed from the gas station and backed across the highway. After making a U-turn, he continued to drive erratically, running a series of red lights. This is precisely the type of conduct the legislature sought to prohibit, recognizing that carjacking is a dangerous crime that raises a serious potential for harm to the victim, the perpetrator and members of the public. (People v. Hill, supra, 23 Cal.4th at pp. 858-859; People v. O'Neil, supra, 56 Cal.App.4th at p. 1133.) There was substantial evidence from which the jury could have inferred that appellant used force to deprive Christmas of his SUV.

Statutory Definition of Fear

Appellant claims that the jury should have been required to find whether Christmas's fear was reasonable. There is no such requirement in the carjacking statute (§ 215); thus we look to the definition of fear in the robbery statute. (§ 211.) Section 212 provides in part, "The fear mentioned in Section 211 may be either: 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family." (Italics added.)^[5]

Appellant acknowledges that section 212 applies to the carjacking statute, but argues that it should also include a requirement that the victim's fear be objectively reasonable. In support of his contention, he relies on language in the rape statute, which makes reference to a victim's fear of immediate and unlawful bodily injury . . . ." (§ 261, subd. (a)(2), italics added.) He cites authority in which the foregoing language was interpreted to require a finding of the subjective and objective reasonableness of the victim's fear. (See People v. Iniguez (1994) 7 Cal.4th 847, 856-857.) Appellant contends that we should read such a requirement into section 212. We reject this argument without further analysis. The plain language of section 212 does not require such a determination.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

William R. Chidsey, Judge

Superior Court County of Los Angeles

______________________________

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

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

^[2] Section 215 , subdivision (a) provides, "'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, accomplished by means of force or fear."

^[3] Section 211 provides, "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."

^[4] The jury was instructed with CALJIC No. 9.46 (Carjacking) which provided in part, "In order to prove this crime, each of the following elements must be proved: 1. A person had possession of a motor vehicle; 2. The motor vehicle was taken from his or her person or immediate presence, or from the person or immediate presence of a passenger of such vehicle; 3. The motor vehicle was taken against the will of the person in possession; 4. The taking was accomplished by means of force or fear either before, during or after taking possession of the vehicle; and 5. The person taking the vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession."

^[5] The carjacking statute expressly incorporates the robbery statute by stating that section 215 "shall not be construed to supersede or affect Section 211. A person may be charged with a violation of [section 215] and Section 211. However, no defendant may be punished under [section 215] and Section 211" for an act that violates both code sections. (§ 215, subd. (c).)