Filed 11/10/14 P. v. Carroll CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F066554
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12901672)
    v.

BRIAN ANTHONY CARROLL, JR.,                                                             OPINION
    Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Fresno County. Denise
Whitehead, Judge.
         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Catherin Chatman and
Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         A jury found appellant Brian Anthony Carroll, Jr., guilty of carjacking (Pen. Code,
§ 215, subd. (a))1 and not guilty of robbery (§ 211). The court found four prior prison
commitments true under section 667.5.


1        All further statutory references are to the Penal Code unless otherwise stated.
       Appellant was sentenced to three years in state prison for the carjacking conviction
and an additional four years for the prison priors (§ 667.5, subd. (b)). The total term of
imprisonment was seven years.
       On appeal, appellant contends that his conviction must be reversed because the
evidence is insufficient to prove carjacking and that the trial court erred in its failure to
instruct, sua sponte, on the lesser included offense of unlawful taking of a vehicle (Veh.
Code, § 10851, subd. (a)). We affirm.
                             STATEMENT OF THE FACTS
       On February 29, 2012, Raul Hernandez traveled from his home in Firebaugh,
California to Mendota, California in a blue Mustang vehicle. He cashed a paycheck and
drove to a trailer park to see a friend, Rudy Perez, for auto repairs. Appellant was close
friends with Perez and came by with his girlfriend, Keisha Benitez, while Perez was
fixing Hernandez’s car. Hernandez had never met appellant or Benitez before. They
engaged in a brief conversation and Hernandez asked if Benitez “partied.” This was
taken to mean whether she drank alcohol or used drugs. Appellant invited Hernandez to
meet up with them later that evening at Gion Porras’s house, which was down a nearby
alley. At some point, appellant also offered Hernandez the opportunity to have sexual
relations with Benitez. When Perez finished the car repairs, Hernandez drove him to his
mother’s house and then returned to meet appellant and Benitez at Porras’s house.
       Hernandez parked the car in the alley next to the home and entered the backyard
through a gate. Upon entering, he saw Benitez in the back seat of a Cadillac parked in
the yard. Hernandez agreed to pay approximately $60 to have sex with Benitez and gave
the money to appellant. Initially, Benitez seemed to agree with the arrangement.
Appellant left them alone and Hernandez entered the back of the Cadillac with Benitez.
Appellant then suddenly returned carrying a large stick and ordered Hernandez to get out
of the car. Hernandez testified that appellant was striking the ground with the stick while




                                               2.
demanding all of Hernandez’s money and the keys to his car, which was still parked in
the alley. He also stated that Porras was present holding a saw.
       Hernandez claimed that over the course of this confrontation he was shoved
against the car, punched in the face, and that his life was threatened as he handed over the
money he had, little by little. Porras told Hernandez he should cooperate. Regarding the
car, appellant initially ordered him to call the registered owner and tell them that the car
had been sold.2 However, when the owner could not be reached, appellant forced
Hernandez to sign a note saying that he sold the car to Benitez. According to Hernandez,
he was too nervous to sign and so appellant gave him methamphetamine to smoke to
calm his nerves, at which point he signed the note. Hernandez testified that he then saw
appellant go to the car in the alley, assumed he got in (since he saw him close the door),
heard it start, and saw the car pull away. Porras then told Hernandez he could leave.
Porras warned Hernandez not to contact the police or they would find him.
       Upon leaving Porras’s house, Hernandez went back up the alley and soon found
Perez. Hernandez told Perez that he had been robbed. Perez went to the house and spoke
with appellant. Perez returned with the keys and told Hernandez he could find the
Mustang parked on the street in front of Porras’s house. Hernandez testified that he spent
the next three days living in his car before calling the police because he was afraid of
being attacked.
Defense
       According to appellant’s testimony at trial, when Hernandez arrived at Porras’s
house he offered beers and methamphetamine to the others. Appellant, Hernandez, and
Benitez were all sitting in the Cadillac together when Hernandez asked appellant to
translate to Benitez his desire to have sex with her. She agreed, $60 was exchanged, and
appellant left them alone and went to join Porras, who was doing some work in the

2     The car’s registration listed a woman in Dos Palos as the registered owner as of
February 29, 2012, even though Hernandez had partly purchased it.


                                              3.
garage. Appellant stated that they heard a noise coming from the car and then heard
Benitez saying “[g]et off me, stop.” Appellant then opened the car door and pulled
Hernandez out. He testified that he was upset and yelled at Hernandez and also noted that
he saw Benitez’s shirt was torn open and that she also appeared upset. There was a brief
discussion in which appellant suggested Hernandez might have tried to rape Benitez.
Appellant testified that Hernandez asked him not to tell the police and then Hernandez
left. When Perez came by to retrieve Hernandez’s keys, appellant handed them over and
told Perez that he believed Hernandez tried to rape Benitez.
       Perez testified that when he found Hernandez coming out of the alley that night
and he looked nervous, he was slurring and stuttering, and looked “intoxicated.” At trial,
Hernandez acknowledged both drinking beer and smoking methamphetamine. During
cross-examination, he also testified that he was not exactly clear as to what happened
regarding whether appellant left with the car while Hernandez stayed behind. He also
stated that before leaving, appellant shook his hand and told him “‘[e]verything’s going
to be okay.’”
       Defense Investigator Celia Alderete testified that she had examined the backyard
and the alley, and that in her opinion it is impossible to see through the fence into the
alley. She also stated that it would be impossible to see a car parked in the alley from the
backyard. The note about selling the car to Benitez was never found, and no paper or
pencil was found in the backyard. Appellant denied driving or moving Hernandez’s car.
                                       DISCUSSION
   I. SUFFICIENCY OF THE EVIDENCE
       Appellant argues that there is insufficient evidence to support his conviction of
carjacking. We disagree.
Standard of Review
       In determining whether there is sufficient evidence to support a conviction, the
record is reviewed as a whole “‘in the light most favorable to the judgment below to


                                              4.
determine whether it discloses substantial evidence - that is, evidence which is
reasonable, credible and of solid value - such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v. Towler (1982) 31 Cal.3d 105,
117-118, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard of review
is the same in cases where the jury relies on circumstantial evidence. (Towler, supra, at
p. 118.) Where a jury rejects a defendant’s hypothesis pointing to innocence, and the
evidence supports “‘the implied finding of guilt as the more reasonable of the two
hypotheses,’” we must affirm the conviction. (Ibid.) We analyze this issue based on
Hernandez’s version of the facts as substantially the version accepted by the jury. (See
People v. Medina (1995) 39 Cal.App.4th 643, 651 (Medina).)
Applicable Law and Analysis
       Appellant contends that there is insufficient evidence to support his conviction of
carjacking. 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, subd. (a).) A
conviction of carjacking requires proof that (1) the defendant took a vehicle that was not
his or hers (2) from the immediate presence of a person who possessed the vehicle or was
a passenger in the vehicle (3) against that person’s will (4) by force or fear and (5) with
the intent to permanently or temporarily deprive the person of possession of the vehicle.
(People v. Magallanes (2009) 173 Cal.App.4th 529, 534.) We find that there is sufficient
evidence to support appellant’s conviction of carjacking.
       A person takes something when he gains possession of it and moves it. (People v.
Vargas (2002) 96 Cal.App.4th 456, 463.) Courts have stated that the taking element in
carjacking is analogous to a taking in a robbery. (Ibid.) Slight movement, even a very
short distance, will suffice, and it is not necessary that the property be taken out of the


                                              5.
physical presence of the victim. (2 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012)
Crimes Against Property, § 96, p. 133.) In the present case, Hernandez testified that he
handed his car keys to appellant. He watched appellant leave the yard through the gate
and into the alley where the car was parked, assumed he got in (since he saw him close
the door), heard it start, and saw the car pull away. The fact that Hernandez may not
have definitively seen appellant drive away does not mean that a jury could not
reasonably conclude that it was indeed appellant who moved the car based on available
evidence. When Hernandez regained possession of his keys, he found his car parked on
the street in front of the house. Appellant’s argument makes much of the fact that the car
was only moved from the alley to the street. However, even if moved only a few yards
there is sufficient evidence that appellant had possession of the car and moved it.
       Carjacking requires the vehicle to be taken from the victim’s immediate presence.
Courts do not require the victim to be in the actual physical presence of the car when the
confrontation occurs. (See Medina, supra, 39 Cal.App.4th at p. 649.) Rather,
“immediate presence” is defined to encompass an area in proximity to the vehicle. (Id. at
p. 651.) In Medina, the defendant lured the victim to a hotel room where he robbed the
victim and took the keys to his car, which was parked outside approximately 20 feet
away. (Id. at pp. 646-647.) The court concluded that there was substantial evidence the
immediate presence requirement was satisfied. (Id. at p. 651; see also People v. Gomez
(2011) 192 Cal.App.4th 609, 625 (Gomez) [immediate possession element met when
defendant took the truck while the victim fearfully watched from inside his apartment,
about 10 feet away]; People v. Hoard (2002) 103 Cal.App.4th 599, 608 [immediate
possession element met when defendant took keys by threat even though the victim was
not in the parking lot when the defendant drove away].) Thus, it is not necessary for the
victim to be physically present in or with the vehicle when the taking occurs.
       Similar to the circumstances in Medina, Hernandez’s car was parked only a few
feet away on the other side of the fence that surrounded the backyard where the


                                             6.
confrontation occurred. Hernandez was in possession of his keys at the time and
fearfully gave them to appellant, believing his life was in danger if he did not comply.
Perez found appellant still in possession of the keys and the car when he went to retrieve
them on behalf of Hernandez. The jury could have reasonably found sufficient evidence
that the car was taken from Hernandez’s immediate presence.
       Similarly, there is sufficient evidence that the car was taken against Hernandez’s
will. Hernandez testified that he did not want to hand over his keys but felt he had to
because he believed appellant and Porras would harm him if he did not do as they asked.
Even if following appellant’s version of the facts, where he pulled Hernandez from the
car and there was a brief confrontation before Hernandez ran off, there is no evidence that
Hernandez willingly gave up his keys or his car.
       The taking must also occur by fear or force. While threats or demands for car
keys may demonstrate a taking by fear or force, an express threat is not necessary to
establish the victim’s fear. (People v. Hoard, supra, 103 Cal.App.4th at p. 609; People v.
Magallanes, supra, 173 Cal.App.4th at p. 534.) A defendant’s brazen behavior can
suffice to create a reasonable sense of fear in the victim. (Magallanes, supra, at p. 534,
citing People v. Flynn (2000) 77 Cal.App.4th 766, 771-773.) Again, the facts in Medina
are similar to what transpired in the case here. In Medina, the defendant used sticks at
the hotel room to intimidate the victim into handing over his keys and wallet. The victim
was handcuffed and beaten, and the defendant left in the victim’s car. (Medina, supra, 39
Cal.App.4th at pp. 646-647.) The court found that there was sufficient evidence that this
was a forceful taking for carjacking. (Id. at p. 651.)
       Here, appellant pulled Hernandez out of the Cadillac. During the confrontation
that followed, appellant was holding a stick and beating the ground with it as he made
demands for Hernandez to give him money and the keys to his car. Hernandez was
thrown against the Cadillac and punched in the face while these demands were made.
Porras was also present holding a saw. Additionally, appellant forced Hernandez to sign


                                             7.
a note indicating that he sold the car to Benitez. Hernandez testified that appellant
threatened to kill him if he did not comply. Hernandez felt that his life was in danger and
that he had to comply or risk harm. In light of these demands and threats, he gave
appellant the keys. There was sufficient evidence for the jury to conclude that fear and
force were used.
       Finally, a defendant must have the intent to permanently or temporarily deprive
the person of possession of the vehicle. The intent must exist before or during the use of
force or fear. (Gomez, supra, 192 Cal.App.4th at p. 618.) If the defendant did not form
this intent until after using force or fear, carjacking has not occurred. (CALCRIM No.
1650.) In Gomez, the defendant was part of a group that beat up the victim in an
apartment parking lot. (Gomez, supra, at pp. 614, 617-618.) After the fight was over,
they returned for the victim’s truck upon discovering that they had his keys. (Ibid.) The
victim could see them approach from his apartment, two of them tried to enter the
apartment, and he reasonably feared they would assault him again. (Id. at p. 615.) The
court found sufficient evidence that the intent to permanently or temporarily deprive
existed during the use of fear. (Id. at p. 625.)
       As in Gomez, there is sufficient evidence that appellant intended to permanently or
temporarily deprive Hernandez of his car during the use of force or fear. Hernandez
testified that appellant demanded his keys after pulling him from the car. Appellant was
holding a stick and Porras stood close by with a saw telling Hernandez to cooperate.
There was also testimony from Hernandez that appellant ordered him to call the
registered owner and made him sign a letter indicating that the car had been transferred,
either by gift or sale, to Benitez. Thus, there was substantial evidence for a reasonable
trier of fact to conclude that appellant intended to permanently deprive Hernandez of
possession of his car.




                                              8.
Conclusion
       Appellant emphasizes the inconsistency and lack of credibility in Hernandez’s
statements at trial. However, on appeal, our task is to determine whether the evidence
could reasonably support a finding of guilt, not whether the evidence at trial was
believable. Substantial evidence reasonably supports the jury’s conclusion that appellant
took Hernandez’s vehicle against his will by force and with the intent to permanently
deprive him of it. His claim to the contrary is rejected.
    II. LESSER INCLUDED OFFENSE
       Appellant also contends that the trial court erred in failing to instruct the jury sua
sponte on the offense of unlawful taking of a vehicle under Vehicle Code section 10851,
subdivision (a). We do not agree.
Procedural Background
       At trial, the jury was instructed pursuant to CALCRIM No. 1650 on carjacking
and CALCRIM No. 1600 on robbery.3 There was no request that for the jury to be
instructed on unlawfully taking a vehicle under Vehicle Code section 10851, subdivision


3        The jury was instructed on carjacking pursuant to CALCRIM No. 1650, as
follows: To prove that the defendant is guilty of this crime, the People must prove that:
(1) The defendant took a motor vehicle that was not his own; (2) The vehicle was taken
from the immediate presence of a person who possessed the vehicle or was its passenger;
(3) The vehicle was taken against that person’s will; (4) The defendant used force or fear
to take the vehicle or to prevent that person from resisting; and (5) When the defendant
used force or fear to take the vehicle, he intended to deprive the other person of
possession of the vehicle either temporarily or permanently. The defendant’s intent to
take the vehicle must have been formed before or during the time he used force or fear. If
the defendant did not form this required intent until after using the force or fear, then he
did not commit carjacking. A person takes something when he or she gains possession of
it and moves it some distance. The distance moved may be short. A person does not have
to actually hold or touch something to possess it. It is enough if the person has control
over it, either personally or through another person. Fear, as used here, means fear of
injury to the person himself or herself. A vehicle is within a person’s immediate presence
if it is sufficiently within his or her control so that he or she could keep possession of it if
not prevented by force or fear.


                                               9.
(a). Appellant argues that the trial court should have, sua sponte, provided the
CALCRIM No. 1820 instruction on unlawfully taking a vehicle under Vehicle Code
section 10851, subdivision (a) because it is a lesser included offense under the elements
test. He further contends that even if the elements test is not met here, it is a lesser
offense of the crime of carjacking under the accusatory pleadings test. Both arguments
are unavailing.
Applicable Law and Analysis
       In criminal cases, the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence, even in the absence of a request. (People v.
Daya (1994) 29 Cal.App.4th 697, 712.) The general principles of law governing the case
are those that are closely and openly connected with the facts before the court and
necessary for the jury’s understanding of the case. (Ibid.) This obligation includes
giving instructions on lesser included offenses when the evidence raises a question as to
whether all the elements of the charged offense were present. (Ibid.) A defendant “‘is
entitled to an instruction on a lesser included offense only if [citation] “there is evidence
which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the
greater offense” [citation] but not the lesser. [Citations.]’” (People v. Lopez (1998) 19
Cal.4th 282, 288.)
       For purposes of instruction, in determining whether an offense is necessarily
included in another, one of two tests must be met. The first is the elements test, which
asks whether “‘“‘all the legal ingredients of the corpus delicti of the lesser offense are
included in the elements of the greater offense.’ [Citation.]”’” (People v. Montoya
(2004) 33 Cal.4th 1031, 1034 (Montoya).) The second is the accusatory pleadings test, in
which “a lesser offense is included within the greater charged offense ‘“if the charging
allegations of the accusatory pleading include language describing the offense in such a
way that if committed as specified the lesser offense is necessarily committed.”
[Citation.]’” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)


                                              10.
       We first apply the elements test and compare the elements of carjacking under
section 215, subdivision (a) with unlawful taking of a vehicle under Vehicle Code section
10851, subdivision (a).
       The lesser offense in this case is unlawfully taking a vehicle and the greater
offense is carjacking, since it has the most elements. Unlawful taking of a vehicle is
committed when (1) a person drives or takes a vehicle not his own, (2) without the
owner’s consent, (3) with the intent to either permanently or temporarily deprive the
owner of title to or possession of the vehicle, (4) with or without the intent to steal the
vehicle. (Veh. Code, § 10851, subd. (a).)
       The California Supreme Court in Montoya addressed the issue of whether the
offense of unlawfully taking a vehicle is a lesser included offense to carjacking.
(Montoya, supra, 33 Cal.4th at pp. 1034-1035.) After applying the elements test, the
Court concluded that it is not because carjacking could be committed without necessarily
committing an unlawful taking of a vehicle. (Id. at p. 1035.) It explained, “‘[c]arjacking
is an offense against the possessor or passengers in a vehicle,’” whereas “‘[[u]nlawful
taking of a vehicle] is a crime against ownership.’” (Ibid.) A person can commit
carjacking without taking the vehicle from the owner, and thus has not committed an
unlawful taking of a vehicle.
       Because unlawfully taking a vehicle is not a lesser included offense to carjacking,
the trial court had no sua sponte duty to instruct the jury on the lesser crime under the
elements test. Even if Hernandez was the owner of the car, as appellant asserts, the
elements test is still not useful because Supreme Court precedent has established that one
is not a lesser included offense of the other.
       The accusatory pleadings test looks at whether the charging language of the
accusatory pleading describes the offense in such a way that, if committed as specified,
some lesser offense is necessarily committed. (People v. Lopez, supra, 19 Cal.4th at pp.
288-289.) This requires consideration of the pleading for the greater offense. Here the


                                              11.
greater offense is carjacking, which alleged in count 1: “On or about February 29, 2012,
in the above named judicial district, the crime of CARJACKING, in violation of PENAL
CODE SECTION 215(a), a felony, was committed by Gion Carlo Porras and Brian
Anthony Carroll Jr., who did unlawfully take a motor vehicle in the possession of Raul
Adolfo Hernandez from his or her person and immediate presence and from the person
and immediate presence of a passenger of said motor vehicle, against the will and with
the intent to permanently and temporarily deprive the person in possession of the motor
vehicle of the possession and accomplished by means of force and fear.”
       The evidence at trial established that while Hernandez was in possession of the car
when it was taken, he was not the registered owner. The charging language of the
pleading identifies the victim as someone in possession of the car. It does not refer to the
owner. The crime of carjacking was pleaded in a manner that did not include unlawfully
taking a vehicle because the language did not allege that the crime was committed against
the registered owner. As discussed above, the crime of unlawfully taking a vehicle is a
crime against ownership, not possession. (Montoya, supra, 33 Cal.4th at p. 1035.) Thus,
as pleaded, appellant could have committed carjacking without also committing the crime
of unlawfully taking a vehicle.
       Neither the elements test nor the accusatory pleadings test support appellant’s
argument that the trial court should have instructed the jury on a lesser offense to
carjacking.
       We also find any error in failing to instruct on unlawfully taking a vehicle
harmless. In People v. Breverman (1998) 19 Cal.4th 142, 178, the California Supreme
Court held that in noncapital cases, “error in failing sua sponte to instruct, or to instruct
fully, on all lesser included offenses and theories thereof which are supported by the
evidence must be reviewed for prejudice exclusively under Watson.” Under People v.
Watson (1956) 46 Cal.2d 818, 836, a conviction for a charged offense may be reversed as
a consequence of this sort of error when, after examination of the entire cause, including


                                              12.
the evidence, it appears “‘reasonably probable’ the defendant would have achieved a
more favorable result had the error not occurred.” (Breverman, supra, at p. 149.)
       Here, there was no error because even if the trial court had instructed on the crime
of unlawfully taking a vehicle, it is not reasonably probable that the jury would have
reached a more favorable outcome. There are two important distinctions between
carjacking from unlawfully taking a vehicle. First is the status of the victim, whether the
owner or the possessor, and the second is the means by which the vehicle was taken,
whether with force or fear. Unlawfully taking a vehicle can only be committed against
the owner of the vehicle. However, carjacking can be committed against either an owner
or a possessor of the vehicle. Thus, Hernandez’s status as a possessor and not the owner
of the car would not have changed the outcome as to carjacking. Additionally, the jury in
this case obviously believed the prosecution’s testimony that Hernandez’s vehicle was
taken by force or fear. Evidence demonstrated that appellant threatened to kill Hernandez
if he did not relinquish his keys and Hernandez believed he would be harmed if he did
not cooperate.
       Under these circumstances, there is no reasonable probability that had the jury
been instructed on unlawfully taking a vehicle it would have chosen that option.
                                     DISPOSITION
       The judgment is affirmed.


                                                                  ____________________
                                                                             Franson, J.

WE CONCUR:

_____________________
Cornell, Acting P.J.


_____________________
Poochigian, J.

                                            13.
