Opinion
F050614
5-9-2007
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND AVILA, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J. and Gomes, J.
A jury convicted Raymond Avila of three counts of carjacking (counts 4, 5 and 6/Pen. Code, § 215, subd. (a)) and one count of attempted kidnapping (count 7/Pen. Code, §§ 664/207). On June 13, 2006, the court sentenced Avila to an aggregate term of nine years two months as follows: the midterm of five years on count four, consecutive sentences of one year eight months on counts five and six and a consecutive ten months on count 7. On appeal, Avila contends the evidence is insufficient to sustain his conviction on the carjacking offense he was convicted of in count 6. We will affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
Only the facts underlying count 6 are discussed because Avila has not raised any issues regarding his other convictions.
On July 8, 2005, shortly after 6:00 a.m., Avila drove a stolen truck to a location on Oakland Avenue in Fresno County where Ruben Huerta had parked his 1999 Ford Explorer and had left his keys on the drivers seat so he could connect some cables to an antenna. As Huerta was kneeling down and bent over, Avila got out of his vehicle and walked up to him. Avila came within two feet of Huerta, pointed a large knife at Huertas neck, and demanded the keys. Huerta got up, stepped back and told Avila that he did not have the keys. Avila then went to the Explorer, found the keys on the front seat, and drove off in the Explorer. Huerta was approximately 20 feet from the Explorer when Avila took it. Avila was subsequently arrested after he wrecked the Explorer in a canal and was found hiding in a field by a police canine.
DISCUSSION
Avila contends the evidence is insufficient to sustain his conviction for carjacking in count 6 because it failed to show that he took the car from Huerta or his immediate presence. We disagree.
"Generally, in reviewing a claim based on the sufficiency of the evidence, the appellate court views the record in the light most favorable to the verdict below to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, and every reasonable inference the jury could draw from the evidence is indulged. [Citation.]" (People v. Coleman (2007) 146 Cal.App.4th 1363, 1367.)
"`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." (§ 215, emphasis added.)
The elements of the offense of carjacking are: "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; 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." (CALJIC No. 9.46 (6th ed. 1996).)
Here, Avila took Huertas Explorer at knifepoint while it was parked only 20 feet away from Huerta, eventually wrecking it in a canal. The jury reasonably could find from these circumstances that Avila carjacked Huertas Explorer.
Avila contends that the evidence failed to show that the Explorer was within Huertas immediate presence because Huerta could not exercise physical control over it since he was 20 feet away from it when Avila accosted him and Huerta did not have the keys. Avila is wrong.
"Relying on robbery cases, appellate courts have taken a similarly expansive view of the `immediate presence requirement. In People v. Medina (1995) 39 Cal.App.4th 643, 649-650, ... the court approved a jury instruction defining the immediate presence requirement modeled after the definition applied to the robbery statute. Concluding that the Legislature `obviously had the robbery statute in mind when it enacted the carjacking statute, the Medina court cited the California Supreme Courts discussion of the immediate presence requirement in People v. Hayes (1990) 52 Cal.3d 577,... [Citation.] According to People v. Hayes, `"`[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." [Citations.] [Citation.]" (People v. Coleman, supra, 146 Cal.App.4th at p. 1370.) In People v. Webster (1991) 54 Cal.3d 411, the court found the immediate presence element satisfied where robbers lured the victim a quarter mile away from his car, attacked and killed him and then stole his car. (Id. at p. 441.) In People v. Harris (1994) 9 Cal.4th 407, the court found the immediate presence element satisfied where the victim was guarded in his car while items were taken from his office building located 35 feet away and where the victim was guarded in a car parked around the corner from his house while some of the defendants looted it.
Here, Huerta was only 20 feet from his Explorer when Avila approached him. Further, it is clear that if Avila had not used force or fear, Huerta could have maintained possession of his vehicle. We do not find the fact that the Explorers keys were on the front seat determinative because but for Avilas threatening behavior Huerta could have gotten his keys from his front seat and retained possession of his Explorer. The fact that the statute provides that carjacking can be committed by taking the car from the immediate presence of a passenger, a person who ordinarily would not have keys to the car, further undermines Avilas contention. Accordingly we reject Avilas contention that the evidence is insufficient to sustain his conviction for carjacking.
DISPOSITION
The judgment is affirmed.