Filed 2/24/17
         CERTIFIED FOR PARTIAL PUBLICATION*

        IN THE COURT OF APPEAL OF THE STATE OF
                      CALIFORNIA

                SECOND APPELLATE DISTRICT

                      DIVISION EIGHT


THE PEOPLE,                        B267935

     Plaintiff and                 (Los Angeles County
Respondent,                        Super. Ct. No. KA109537)

       v.

ARLEEN STACY LOPEZ,

     Defendant and
Appellant.


In re ARLEEN STACY                 B277301
LOPEZ,
                                   (Los Angeles County
       on Habeas Corpus.           Super. Ct. No. KA109537)




*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the
exception of parts 2 through 4 of the Discussion.
     APPEAL from a judgment and order of the Superior
Court of Los Angeles County, Robert Martinez, Judge.
Judgment affirmed; petition denied.
     Jenny Macht Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant and Petitioner.
     Kamala D. Harris and Xavier Becerra, Attorneys
General, Gerald A. Engler, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Yun K. Lee and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.

                            ******

      Appellant Arleen Stacy Lopez appeals from the judgment
after her conviction for carjacking. She also petitions for a writ
of habeas corpus based on ineffective assistance of counsel. We
affirm the judgment and deny the petition.
                  FACTUAL BACKGROUND
      On April 7, 2015, Aurora Prado, a 65-year-old woman,
drove a Toyota Highlander belonging to her daughter’s
boyfriend to the El Super market in La Puente. She pulled
part way into an accessible parking space,1 but realized the
space was blocked by two shopping carts. She exited the
vehicle to move the carts, leaving the door open and the engine
running.
      While Prado was moving the carts, appellant walked
past her, climbed into the driver’s seat of the Highlander, and
closed the door. Prado went over to the driver’s side and


1     Prado described herself as “disabled.”




                                2
“bang[ed] on the window,” pleading with appellant not to take
the vehicle. Prado grasped the door handle with her left hand
and tried to open the door, but appellant held it shut.
Appellant began backing the vehicle up as Prado held on to the
door handle and continued to plead with appellant not to take
the car. Prado said appellant “didn’t reverse slow . . . . She go
fast and makes noise with the tires . . . .” Prado held on to the
door handle until she lost her balance and had to let go,
although she did not fall to the ground. Appellant sped off.
      On April 9, 2015, authorities located appellant in the
Highlander in the parking structure of a casino in Highland.2
A detective with the Los Angeles County Sheriff’s Department
interviewed appellant several days later. Appellant admitted
that she had taken a Highlander from an elderly Hispanic
female in a supermarket parking lot.
      At trial, Prado identified appellant as the person who
took the Highlander. The prosecution presented a surveillance
video of the entire incident. Prado testified that appellant had
pushed her before getting into the car, but acknowledged on
cross-examination that she could not see a push on the
surveillance video.3




2     Appellant was in the front passenger seat, and a man
was in the driver’s seat.
3     Prado said the video “went too fast,” presumably
referring to the low frame rate of the surveillance video, which
created brief but noticeable gaps in the recorded footage.
Despite the video, Prado continued to assert that she had been
pushed.




                                3
                PROCEDURAL BACKGROUND
       Appellant was charged with carjacking (Pen. Code, § 215,
subd. (a))4 and found guilty by the jury. She was sentenced to
state prison for the low term of three years, with various
credits and fines. Appellant timely appealed.
                           DISCUSSION
1. Insufficient Evidence
       Appellant contends there was insufficient evidence that
she took the Highlander “by means of force.” We hold there
was sufficient evidence and reject this argument.
a. Applicable law
       “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. [Citations.] ‘ “[I]f the verdict is supported
by substantial evidence, we 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.” ’ ” (People v. Snow (2003)
30 Cal.4th 43, 66.) This standard applies whether direct or
circumstantial evidence is involved. (Ibid.)
       A person may be convicted of carjacking only upon proof
of a “felonious taking of a motor vehicle . . . accomplished by
means of force or fear.”5 (§ 215, subd. (a).) The carjacking

4     All further statutory references are to the Penal Code
unless otherwise specified.
5     “ ‘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




                                 4
statute does not define “force,” nor have we found any case law
that provides a definition. But courts interpreting the
carjacking statute have analogized it to the robbery statute,
section 211, as both share similar language and elements.6
(People v. Lopez (2003) 31 Cal.4th 1051, 1059 (Lopez) [holding
that “ ‘ “felonious taking” ’ ” had the same meaning under both
§ 211 and § 215 because “the carjacking statute’s language and
legislative history . . . demonstrate that carjacking is a direct
offshoot of robbery and that the Legislature modeled the
carjacking statute on the robbery statute”].) Given that both
crimes are “accomplished by means of force or fear” (§§ 211,
215, subd. (a)), we may presume that the Legislature intended
that those terms have substantially the same meaning in both
statutes, in the absence of any clear intent to the contrary.
(See Lopez, supra, at p. 1060 [“When legislation has been
judicially construed and a subsequent statute on a similar
subject uses identical or substantially similar language, the
usual presumption is that the Legislature intended the same
construction, unless a contrary intent clearly appears.”].)
       However, “[t]he analogy between robbery and carjacking
is imperfect.” (People v. Hill (2000) 23 Cal.4th 853, 860 (Hill).)


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,
subd. (a).)
6     “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.” (§ 211.)




                                5
For example, the penalty for carjacking is greater than for
second degree robbery,7 in part “because . . . the nature of the
taking[] raises a serious potential for harm to the victim, the
perpetrator and the public at large.” (People v. Antoine (1996)
48 Cal.App.4th 489, 495.) And the Supreme Court held that,
unlike robbery, a defendant could be guilty of carjacking even
if the victim (in that case, an infant) was unaware of the
taking. (Hill, supra, at pp. 860-861.) The court based this
holding in part on the increased risk of danger involved in
carjacking: “unlike a robbery, a carjacking subjects an
unconscious possessor or occupant of a vehicle to a risk of harm
greater than that involved in an ordinary theft from an
unconscious individual.” (Ibid.)
       Thus, we proceed with our analysis using the law of
robbery as a guide, keeping in mind that the carjacking statute
reflects a heightened concern for safety.
       “ ‘The terms “force” and “fear” as used in the definition of
the crime of robbery have no technical meaning peculiar to the
law and must be presumed to be within the understanding of
jurors.’ ” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708,
quoting People v. Anderson (1966) 64 Cal.2d 633, 640.) In
terms of the amount of force required to elevate a taking to a
robbery, “something more is required than just that quantum
of force which is necessary to accomplish the mere seizing of
the property.” (People v. Morales (1975) 49 Cal.App.3d 134,
139 (Morales).) But the force need not be great: “ ‘ “[a]ll the

7      Prior to the creation of the crime of carjacking in 1993,
“the forcible taking of a motor vehicle was charged and
prosecuted as a second degree robbery.” (Lopez, supra, 31
Cal.4th at p. 1057.)




                                6
force that is required to make the offense a robbery is such
force as is actually sufficient to overcome the victim’s
resistance . . . .” ’ ” (People v. Burns (2009) 172 Cal.App.4th
1251, 1259 (Burns), quoting People v. Clayton (1928) 89
Cal.App. 405, 411.) Burns in fact based its analysis not on the
amount of force applied, but on the fact of the victim’s
resistance; thus, a purse snatching constituted robbery when
the defendant stepped on the victim’s toe and pulled the purse
from her as she struggled to hold onto it. (Burns, supra, at
pp. 1255, 1257 [“where a person wrests away personal property
from another person, who resists the effort to do so, the crime
is robbery, not merely theft”].)
b. Analysis
       Appellant argues that the showing of force in this case
was insufficient to support her conviction.8 She notes that she
did not use a weapon, or touch or threaten the victim.9 She

8      The prosecution at trial focused on the “force” element
and did not argue that the taking was accomplished through
fear. Prado, the victim, provided some testimony arguably
suggesting she was frightened, specifically referring to
concerns she had during the incident that she might fall down
and be injured by the vehicle’s tires. We need not decide
whether this testimony was sufficient to support a finding of
fear, given our holding that the evidence was sufficient to
support a finding that force was used.
9     Respondent argues there was sufficient evidence to
support a finding that appellant had pushed Prado before
taking the car, assuming the jury credited Prado’s testimony
that she was pushed and found the surveillance video unclear
enough that it did not contradict Prado. Having reviewed the
surveillance video ourselves, we think it exceedingly unlikely a
reasonable juror would conclude that appellant pushed




                               7
asserts that she applied no more force than was necessary to
reverse the Highlander out of the parking space and drive off,
and this was nothing more than “the quantum of force which
[was] necessary to accomplish the mere seizing of the
property.”
       We disagree. The prosecution offered evidence that
appellant was driving faster than necessary simply to move the
vehicle. Prado testified that appellant reversed quickly enough
to “make[] noise with the tires” and was “go[ing] fast,” all of
which would support a conclusion by the jury that appellant
was driving at relatively high speed, and thus accomplishing
the taking with more force than was necessary to take the
property. (See People v. Anderson (2011) 51 Cal.4th 989, 993,
995 [robbery defendant applied more force than necessary to
move a stolen vehicle when he drove 25-30 miles per hour in a
parking lot in an attempt to get through a closing electronic
gate].)
       Even absent evidence of fast driving, however, the law
does not support as strict an application of the Morales rule as
appellant argues. For thefts of most personal property, there is
an appreciable distinction between the quantum of force
necessary to seize the property from an unresisting victim, and
the additional force needed to seize the property if the victim
fights back. It is thus possible to apply the rules from both
Morales and Burns: if the thief is applying no more force than
necessary to lift the property and carry it off, there is no
robbery; if the victim resists, more force is needed and the theft

Prado—even the prosecutor conceded there was no push visible
on the video. We need not reach the issue, however, given our
holding.




                                8
becomes a robbery. But carjacking presents a circumstance in
which the amounts of force may be identical in both situations.
Given the power of even a slow-moving vehicle, a thief
attempting to drive the car away need not apply additional
force to shake off a victim trying to stop the car from moving.
Under such a circumstance, Morales and Burns are in tension
with one another, and either potentially is applicable.
       Appellant urges us to apply the rule from Morales, but
we think the more appropriate rule is that of Burns. Under
Burns, a victim’s physical resistance will convert a theft into a
robbery, regardless of the amount of force involved. (See
Burns, supra, 172 Cal.App.4th at p. 1257.) It is sensible to
treat a theft more severely under the law when it involves
overcoming a victim’s resistance, because the risk of harm to
the victim is greater, and the crime is commensurately more
serious. That risk of harm certainly exists when a victim
resists the taking of a vehicle, even if the vehicle is moving just
as it would were the victim not present. As discussed above,
the law recognizes that the taking of a car from the immediate
presence of its driver or passengers creates a fundamentally
more hazardous situation than the taking of most other forms
of property, and thus the Penal Code imposes a greater penalty
for carjacking than for second degree robbery. Similarly, that
potential for harm makes it appropriate to treat the taking of a
vehicle more severely when the victim physically tries to stop
the vehicle, even if the only force the perpetrator applies is the
force necessary to move the vehicle.10 We therefore hold that a

10    Appellant claims that People v. O’Neil (1997) 56
Cal.App.4th 1126 rejected a defendant’s argument that “force”
has different meanings under the carjacking and robbery




                                 9
perpetrator accomplishes the taking of a motor vehicle by
means of force, as defined under section 215, when the
perpetrator drives the vehicle while a victim holds on or
otherwise physically attempts to prevent the theft.11
       Under this analysis, there clearly was sufficient evidence
to support appellant’s conviction. Both the surveillance video
and Prado’s testimony established that Prado held onto the
Highlander and tried to stop the vehicle as appellant backed
out of the parking space. Appellant continued to back up until
Prado had to let go. This was sufficient evidence to support the
jury’s finding that appellant had used force to take the vehicle
from Prado.
2. Failure to Instruct on Lesser-related Offenses*
       Appellant argues that the trial court erred in not
instructing the jury on two lesser offenses, theft (§ 487) and the
unlawful taking or driving of a vehicle (Veh. Code, § 10851).
We reject this argument.




statutes because of the greater potential for harm to victims
during a carjacking. Appellant misreads O’Neil: the defendant
never made such an argument, and the court in fact pointed to
the great potential for harm as a reason to reject defendant’s
other arguments attempting to narrow the scope of the
carjacking statute. (Id. at p. 1133.)
11     In our holding we in no way mean to suggest that
carjackings only arise when victims attempt to stop the taking.
Our holding applies when there is no evidence that the taking
was accomplished by means of fear, and the only force applied
is the force necessary to move the vehicle.
*     See footnote, ante, page 1.




                               10
a. Proceedings Below
       Before trial, defense counsel stated its intention to
request a jury instruction for Vehicle Code section 10851. The
court said “That is going to depend on the evidence.” The
prosecution said nothing on the topic. Later, after the parties
submitted proposed instructions, the court denied defense
counsel’s request for instructions for both Vehicle Code section
10851 and Penal Code section 487, citing cases holding that
neither was a lesser-included offense of carjacking. Again, the
prosecution did not comment. The issue arose again after the
jury reached its verdict and defense counsel moved for a new
trial, arguing there had been sufficient evidence to support
instructions for Vehicle Code section 10851 and Penal Code
section 487. The prosecution opposed the motion, arguing that
the court could only instruct on the lesser-related charges if the
parties agreed. The court denied the motion, stating that prior
law entitling defendants to instructions on lesser-related
offenses had been overturned.
b. Analysis
       Appellant concedes that neither theft nor unlawful
taking or driving a vehicle are lesser-included offenses of
carjacking.12 (People v. Montoya (2004) 33 Cal.4th 1031, 1033;
People v. Ortega (1998) 19 Cal.4th 686, 693.) Appellant further
concedes that defendants are not unilaterally entitled to
instructions on lesser-related offenses. (People v. Birks (1998)
19 Cal.4th 108, 136 (Birks).) But appellant notes, correctly,

12     Courts must “giv[e] instructions on lesser included
offenses when the evidence raises a question as to whether all
of the elements of the charged offense were present.” (People v.
Breverman (1998) 19 Cal.4th 142, 154.)




                               11
that Birks did not “foreclose the parties from agreeing that the
defendant may be convicted of a lesser offense not necessarily
included in the original charge.” (Id. at p. 136, fn. 19.)
Appellant argues that the prosecution’s lack of objection to
defense counsel’s requested instructions constituted implied
consent that those instructions be given. Thus, appellant
asserts, the trial court had discretion to provide those
instructions, and erred in concluding that it did not.
       We disagree. The trial court never indicated it would
give the instructions proposed by defense counsel; thus, there
was nothing to which the prosecution could object. A lack of
objection does not imply consent when there is no reason for an
objection to be made; the far more logical conclusion is the
prosecution said nothing because it agreed with the court’s
ruling.
       Appellant argues the prosecution should have objected,
had it wished to, when defense counsel first proposed a Vehicle
Code section 10851 instruction before trial, and again when
defense counsel submitted its proposed written instructions.
But appellant does not explain why the prosecution had any
obligation or reason to object at these times when, again, the
trial court had yet to indicate that it would give the
instructions.
       Appellant’s cited cases are unavailing, because all
involve defendants who failed to object to instructions that the
court actually gave. Under those facts, courts have found that
the defendants impliedly consented to the instructions that
were given. (See People v. Toro (1989) 47 Cal.3d 966, 973-974;
Williams v. Southern Pac. R.R. Co. (1895) 110 Cal. 457, 462;
People v. Whitmer (2014) 230 Cal.App.4th 906, 920.) Assuming




                              12
these cases apply to prosecutors as well, an issue we need not
decide, they have no application here when the proposed
instructions were never given. The trial court did not err.
3. Prosecutorial Misconduct and Ineffective Assistance
    of Counsel
       Appellant argues that the prosecutor committed
misconduct by saving his arguments concerning “force and
fear” for his rebuttal, rather than raising them in his initial
closing statement. Appellant further argues that defense
counsel’s failure to object to the purported misconduct
constituted ineffective assistance of counsel. For the reasons
below, we find no reversible error.
a. Proceedings Below
       The jury instructions on carjacking contained five
elements, the fourth being that “the defendant used force or
fear to take the vehicle or to prevent [the victim] from
resisting.” During closing, the prosecutor discussed each
element. When he reached the fourth, he said, “I’m going to
skip the fourth one. The fourth one about use of force or fear
because that is going to be the crucial portion of this case. The
crucial portion is going to be was there force or fear used in the
commission of this crime[.] That is going to be critical, and I’m
going to take some time, separate time, to discuss those facts
with the law. So just hang tight for that.”
       At the end of his closing, the prosecutor said, “I’m going
to come back to talk to you about the fourth element[,] which is
the force or fear[,] after the defense.”
       Defense counsel then presented her closing. On the topic
of force, she stated that “you can’t have carjacking without
force or fear,” and argued that there was no pushing on the




                               13
surveillance video, “no weapon used. No violence. No struggle.
[¶] Arle[en] Lopez walked into the car quickly and closed the
door and locked it.”
        On rebuttal, the prosecutor focused almost entirely on
the force element. He acknowledged the video did not show
any pushing, but argued that “[t]he crux of the case has to do
[with] what happened, not ‘before’ the defendant took control of
the vehicle. . . . [¶] The focus is was there any force used
‘after’ Ms. Lopez took initial possession of the vehicle.” He
then explained that “[t]he force used in this case occurred
when Ms. Lopez began to drive away. You have someone
trying to get their vehicle back, and you have the defendant
driving away or trying to drive away. That is force.” The
prosecutor described appellant “driv[ing] away despite this
elderly woman hanging on practically for dear life.”
b. Analysis
        Appellant argues that the prosecutor “sandbagged” the
defense by making a perfunctory closing statement and
reserving argument on the “sole issue in the case” until his
rebuttal. But defense counsel did not object to the purported
misconduct at trial, either when the prosecutor indicated he
was saving argument for rebuttal, or during the rebuttal itself.
Thus, appellant has forfeited the issue on appeal. (People v.
Cunningham (2001) 25 Cal.4th 926, 1000 (Cunningham).)
        Appellant argues that defense counsel’s failure to object
constituted ineffective assistance of counsel in violation of the
Sixth Amendment of the federal Constitution and the
California Constitution, article I, section 15, a claim raised
both in this appeal and in a separate petition for a writ of
habeas corpus. To prevail on this claim, appellant must show




                               14
“(1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more
favorable result absent counsel’s shortcomings.”
(Cunningham, supra, 25 Cal.4th at p. 1003.)
       We do not reach the question of whether this conduct fell
below an objective standard of reasonableness, because we find
the second prong of the analysis dispositive in this case. The
evidence against appellant was overwhelming: the
surveillance video, Prado’s uncontested testimony, and the
statement appellant made to the police made exceedingly clear
that appellant’s conduct satisfied all the elements of
carjacking. The only issue arguably in dispute was whether
appellant had used force to effect the taking, but on this point
Prado’s testimony and the video indicated that appellant
rapidly reversed the vehicle as Prado held on, evidence enough
to establish use of force. Even had defense counsel had an
opportunity to address the prosecution’s arguments concerning
force, we have difficulty conceiving what she might have said
that would have altered the outcome of the case.
       Appellant argues that the evidence that the force applied
“rose above the level of force necessary to accomplish the
seizure of the car was exceedingly weak.” But even if defense
counsel had argued that appellant used no more force than was
necessary to move the vehicle, that would not have mitigated
appellant’s guilt, given that the victim was clinging to the car
and resisting the taking. And, we think it unlikely that the
jury would ignore Prado’s uncontested testimony that




                              15
appellant backed the car up quickly enough that the tires
screeched, or the video showing Prado being pulled along, all of
which undercuts the notion that appellant was doing nothing
more than backing the car up.
       Because there is not a reasonable probability that
appellant would have achieved a more favorable result had
defense counsel objected to the prosecution’s purported
misconduct, we hold that appellant was not deprived of
effective representation. On this basis, we also deny
appellant’s petition for a writ of habeas corpus.
4. Cumulative Prejudice
       Because we find that none of appellant’s asserted errors
have merit, we reject appellant’s argument that they
cumulatively require reversal.
                         DISPOSITION
       The judgment is affirmed. The petition for a writ of
habeas corpus is denied.



                                          FLIER, J.
WE CONCUR:



      BIGELOW, P. J.



      GRIMES, J.




                              16
