Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF129479, Janice M. McIntyre, Douglas E. Weathers and Helios Hernandez, Judges.
Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
Richard Schwartzberg, 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, Senior Assistant Attorney General, Bradley A. Weinreb, Deputy Attorney General, and Barry Carlton, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
Defendant was initially charged with seven counts. After the trial court dismissed counts 1 and 2, involving kidnapping, and count 3, involving carjacking, (§§ 209, 215, 995) the jury convicted defendant of the remaining four counts: prior theft of a vehicle; receiving a stolen vehicle; possession of burglary tools; and presenting false identification. (§§ 148.9, subd. (a), 466, 496d, subd. (a), 666.5, subd. (a); Veh. Code, § 10851.) The trial court sentenced defendant to two prison terms of 25 years to life with one term stayed.
Both the People and defendant appeal. The People challenge the trial court’s order dismissing the carjacking charge. (§ 215, subd. (a).) Defendant contends the court gave improper instruction on the charge for unlawful taking a vehicle. (Veh. Code, §10851; § 666.5, subd. (a).) The People concede defendant’s second argument that his Nevada robbery conviction was not a “strike” for sentencing purposes. (People v. McGee (2006) 38 Cal.4th 682, 688.)
Nevada Revised Statutes, title 15, chapter 200, section 200.380:
We affirm the judgment except for the true finding as to the Nevada conviction.
2. The Preliminary Hearing
The seven-count felony complaint was filed in April 2006 in Riverside County. At the preliminary hearing conducted by Judge Janice M. McIntyre, two prosecution witnesses testified.
A deputy sheriff testified that, on November 9, 2005, he stopped defendant, who was driving a stolen 2001 Chevrolet Silverado truck in Riverside County. Defendant identified himself falsely as “Oscar Ruiz” and used a fake birthdate. The deputy found burglary tools, including 13 screwdrivers and seven “shaved” car keys, in the truck.
Anna Ayala had reported the vehicle stolen on October 20, 2005. She identified defendant in a six-photograph lineup as the man who took the truck.
In the record, her name is spelled as “Ana” and “Anna.”
An investigator for the office of the district attorney interviewed Ayala. She told him the truck was registered in her aunt’s name. Ayala was leaving a Fontana drug store in San Bernardino County when she found defendant, “[a] huge male,” sitting in the truck’s driver’s seat. Defendant, who wore some kind of badge or identification, claimed he was repossessing the truck for late payments. Ayala insisted the payments were current. Defendant directed another man to get a tow truck. Defendant offered to negotiate and accept back payments in lieu of taking the car. He refused Ayala’s offer of a check. Ayala got into the driver’s seat and offered to drive the truck to the bank to obtain cash. She tried to start the truck using her own key. Defendant replied in “[a] mean, stern voice” that he would not allow her to take the truck but he would drive them to the bank. Defendant drove the truck about five blocks. Ayala was “mad and scared.”
At the bank, Ayala approached the ATM machine and tried to borrow a cell phone from a bystander to call her husband. Defendant interrupted her and accused her of wasting his time. She was extremely scared and felt pressured to hurry. She told him to take the truck. He insisted upon returning her to the drug store. She was afraid to refuse because she feared she might be stabbed or shot if she did not cooperate. During the drive back, she noticed he did not have a company phone and she realized he was not legitimate. He claimed he was being nice to her and then he asked her again for money. She responded she would deal directly with the finance company. She gathered up her belongings and left the truck. She was extremely afraid and she called the police from a nearby pay phone. Defendant did not use any force or threats of physical harm.
The trial court found insufficient evidence for counts 1, 2, and 3, kidnapping and carjacking, and dismissed them.
3. The Trial
The district attorney subsequently filed an information alleging the seven counts again. The trial court, Judge Douglas E. Weathers, granted defendant’s section 995 motion and dismissed the three kidnapping and carjacking counts. The People appealed that order. Trial proceeded on the remaining four counts before Judge Helios Hernandez.
Ayala testified the 2001 truck was registered in the name of her aunt because of credit problems. But she and her husband made the payments and kept possession of the vehicle. On the morning of October 20, 2005, in Fontana, Ayala went to the dentist and then the drug store to fill a prescription for the pain from the extraction of two wisdom teeth. She came out of the drug store and defendant was sitting in her truck. Defendant had some kind of identification hanging on his neck. He explained he was repossessing the truck for the finance company. He claimed to be talking to the finance company on the phone and he conferred with another man standing nearby. Defendant had a key for the truck. Defendant checked the vehicle identification number and asked the other man to call for a tow truck.
Ayala was shocked because she knew the truck payments were current. Defendant asked Ayala to pay him some amount in cash and not with a check. Ayala agreed to go with defendant to the bank after he refused to let her drive. At the bank, she realized something was wrong and she was scared. She retrieved $300 from the ATM machine and tried to call 911 with a borrowed cell phone. Defendant confronted her and accused her of wasting time. Because she was afraid, she told him to take the truck and that she was not giving him any money. He insisted on taking her back to the drug store parking lot and she agreed because she felt like she had no choice. When they arrived there, she refused to give him any money. She got out of the truck and called the police.
The Riverside County deputy sheriff testified he stopped defendant on November 9, 2005, driving the stolen truck in Riverside County just south of Interstate 10 near some railroad tracks. The truck was towing a trailer on a dirt road and had generic dealership paper plates. Defendant provided a false name and birth date. The deputy found some letters in the truck addressed to defendant by his real name. The deputy also found burglary tools: pliers, boltcutters, screwdrivers, and some shaved keys for different car makes, all used to break into cars.
The prosecution also presented forensic evidence to the jury that defendant had a previous conviction for vehicle theft.
Based on further evidence, the court found not true the allegation of a prior strike for a 1976 conviction for assault with a deadly weapon. (§ 245, subd. (a).) The court found true the allegations of two prior strikes based on a 1976 conviction for first degree burglary (§ 459) and a 1998 Nevada conviction for robbery. (N.R.S. 200.380.)
4. The People’s Appeal
The trial court dismissed the carjacking charge on two grounds: Riverside County was not the proper venue for a carjacking committed in San Bernardino County and there was not sufficient evidence of force and fear for the charge of carjacking to proceed to trial. The People contend the trial court erred. We conduct an independent review of these issues. (People v. Campbell (2000) 82 Cal.App.4th 71, 75-76; Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 739-740.)
As to the issue of venue, we agree the crime of carjacking could be properly prosecuted either in San Bernardino County where the crime occurred or Riverside County where the vehicle was recovered: “When property taken in one jurisdictional territory by burglary, carjacking, robbery, theft, or embezzlement has been brought into another . . . the jurisdiction of the offense is in any competent court within either jurisdictional territory, . . .” (§ 786, subd. (a); People v. Simon (2001) 25 Cal.4th 1082, 1096; People v. Staples (1891) 91 Cal. 23, 27.) The carjacking charge could have been tried in Riverside County.
Section 215, subdivision (a), defines carjacking as “the felonious taking of a motor vehicle in the possession of another . . . accomplished by means of force or fear.” The parties agree force or fear are “not synonymous with a physical corporeal assault.” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708; People v. Hays (1983) 147 Cal.App.3d 534, 543.) The “fear” which induces a victim to part with property may be either the fear of an unlawful injury to the person or the property. (People v. Brown (1989) 212 Cal.App.3d 1409, 1418, disapproved on another point in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) The threat to inflict injury is, alone, sufficient if it causes the victim to part with property. (Brown, supra, citing People v. Wolcott (1983) 34 Cal.3d 92, 100.)
But the circumstances of the offense, as related during the preliminary hearing, did not constitute sufficient evidence of force or fear. (People v. Brew (1991) 2 Cal.App.4th 99, 104 [intimidating movement to gain access to a cash register drawer constitutes evidence of force or fear]; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [tapping on the shoulder is sufficient force], disapproved for other reasons in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2; People v. Holt (1997) 15 Cal.4th 619, 690 [robbery after rape is evidence of force and fear]; People v. Shadden (2001) 93 Cal.App.4th 164, 170-171.)
In the present case, there was no force or threat at all. Defendant pretended to be a person authorized to repossess the truck. Although defendant was verbally insistent that he had the right to take possession of and drive the truck, he did or said nothing to force Ayala to relinquish the truck or to cause her to believe he might hurt her. Ayala was scared during her encounter with defendant and perceived him to be “huge” but defendant did not use force or threaten her with physical harm. Her subjective fears were not justified by anything which occurred during the incident. The taking of the truck was not accomplished by use of force or fear. (People v. Coryell (2003) 110 Cal.App.4th 1299, 1302; People v. Gray (1998) 66 Cal.App.4th 973, 985; People v. O’Neil (1997) 56 Cal.App.4th 1126, 1130-1131.) The carjacking charge was properly dismissed.
5. Instructional Error
Defendant contends the court erred when it instructed the jury concerning Vehicle Code section 10851, subdivision (a), which provides: “(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. [Italics added.]” The court instructed the jury that “the People must prove that . . . the defendant took or drove a vehicle without the owner’s consent.”
According to defendant, because he tricked Ayala into giving consent, he did not take the truck “‘without the consent of the owner.’” (People v. Cook (1964) 228 Cal.App.2d 716, 719-720.) Therefore, the court erred by modifying Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1820 and by not giving the special instruction requested by defendant: “Whenever lack of consent is a necessary element of a crime, the fact that consent is obtained through misrepresentation does not supply the essential element of nonconsent.”
But, as the record reflects, Ayala was not the record owner of the truck. The intent to deprive the driver of possession is required for carjacking. (§ 215.) The intent to deprive the owner of title or possession is required for unlawful taking of a vehicle. (Veh. Code, § 10851.) (People v. Montoya (2004) 33 Cal.4th 1031, 1035; People v. Frye (1994) 28 Cal.App.4th 1080, 1086.) Although this distinction was not expressly made below, the record clearly demonstrates title was in the name of Ayala’s aunt, who obviously did not consent to defendant taking the vehicle.
This was not a situation in which it could be inferred the owner gave her consent to defendant’s use. (People v. Rodgers (1970) 4 Cal.App.3d 531, 534.) Nor was this case like People v. Donell (1973) 32 Cal.App.3d 613, relied upon by defendant, in which it was not disputed that Hertz, the rental car company, owned a vehicle and its leasing agent was tricked into renting it to defendant. Ayala’s aunt did not give her consent to defendant’s taking and her lack of consent was not based on the fraud or trickery used against Ayala.
Because the jury was properly instructed, we do not analyze the issue of prejudice.
6. Disposition
We reverse the true finding on the allegation of the Nevada robbery conviction and remand for a retrial on that issue. Otherwise, we affirm the judgment.
We concur: McKinster, Acting P. J., King, J.
“1. Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. A taking is by means of force or fear if force or fear is used to: [¶] (a) Obtain or retain possession of the property; [¶] (b) Prevent or overcome resistance to the taking; or [¶] (c) Facilitate escape. [¶] The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear. [¶] 2. A person who commits robbery is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.”