Filed 5/16/17
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                   A147910
v.
RAYSHAUN HUDSON,                                   (Solano County
                                                   Super. Ct. No. VCR223074)
         Defendant and Appellant.


         Appellant Rayshaun Hudson stole an automobile from a dealer’s service garage by
taking it without permission and driving it out the exit. One of the dealer’s employees
unsuccessfully attempted to pull appellant out of the moving vehicle. Convicted of
carjacking, appellant argues the trial court’s instruction to the jury on the definition of
“force” impermissibly allowed the jury to find that the momentum of the car as appellant
exited the showroom satisfied the statutory requirement. Because the momentum of the
car was sufficient force to support the conviction, we affirm.
                              PROCEDURAL BACKGROUND
         In March 2015, the Solano County District Attorney filed an information charging
appellant with carjacking (Pen. Code, § 215, subd. (a))1 and second degree commercial
burglary (§ 459). In May, a jury found appellant guilty on both counts.
         In March 2016, the trial court imposed the high-term of 9 years for carjacking and
stayed the sentence for second-degree burglary under section 654. The court suspended
the sentence and placed appellant on probation for 3 years.


1
    All undesignated statutory references are to the Penal Code.

                                               1
                               FACTUAL BACKGROUND
       On February 14, 2015, appellant visited a car dealership in Vallejo. The
dealership’s sales manager suspected appellant had taken the key fob of a dealership car
because the key fob appellant returned to a salesperson (apparently after a test drive) did
not start the car. Following a confrontation about the key fob, appellant left the
dealership. The car was moved to the service garage to be re-keyed. The car was parked
facing a wall with the garage exit behind.
       Later that day, appellant returned to the dealership and approached the car in the
service garage. He told a salesperson he had lost his cell phone and the salesperson
permitted him to search for the phone inside the car. The salesperson asked another
dealership employee, Angel Ruiz-Maldonado, to keep an eye on appellant.
       Mr. Ruiz-Maldonado was standing behind the car and he heard the engine start.
He slammed his hands on the trunk and said, “Hey. Stop. What are you doing, man?”
He moved so he would not get hit by the car reversing and then ran around to the
driver’s-side door. With the car now moving in reverse, Mr. Ruiz-Maldonado grabbed
the door and opened it. He tried to grab appellant, but failed due to the movement of the
car. The edge of the car door hit Mr. Ruiz-Maldonado’s arm, leaving a small mark.
       Appellant continued in reverse and exited the garage at about 5 to 10 miles per
hour. Appellant was subsequently detained on the freeway by police.
                                       DISCUSSION
       Appellant contends the trial court’s instruction on the quantum of force required
for a conviction of carjacking permitted the jury to find him guilty without finding he
used force “in excess of that necessary to take the car.” The trial court did not err.
I.     Background
       The prosecutor requested that the trial court supplement the jury instruction on
carjacking (CALCRIM 1650) with a definition of force. He asked that the following
sentence be added to the instruction: “Force, as used here, means force actually sufficient
to overcome the victim’s resistance.” Defense counsel objected; she took the position it
was unnecessary to define the term. In the alternative, she argued the jury should be


                                              2
instructed that “[The] ‘force’ . . . required for carjacking is more than just the quantum of
force which is necessary to accomplish the mere seizing of the property.” Defense
counsel also suggested that, if the court was inclined to accept the prosecutor’s definition,
the court should give the jury both definitions.2
       The trial court instructed the jury on carjacking in the language of CALCRIM No.
1650, stating in part that one of the elements of carjacking was that “[t]he defendant used
force or fear to take the vehicle or to prevent that person from resisting.” The court gave
a “Definition of Force” instruction that combined both parties’ definitions: “The force
required for carjacking is more than just the quantum necessary to accomplish the mere
seizing of the property, the force must be sufficient to overcome the victim’s resistance.”
(Capitalization altered.)
       During his closing, most of the prosecutor’s argument on force was focused on the
formulation he proposed to the court. For example, he argued, “I showed you the
elements, force or fear was used. You don’t need to hurt anybody. You don’t need to
bludgeon anybody. If you use the amount of force necessary to overcome someone’s
resistance to prevent that confrontation to engage someone, that is enough.”
II.    Analysis
       Section 215, subdivision (a) defines “[c]arjacking” as “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.” Although there are “significant differences between the crimes of carjacking
and robbery,” “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. The definition in the carjacking statute (§ 215,
subd. (a)) tracks the language in the robbery statute (§ 211). ‘Both involve “the felonious

2
 We reject respondent’s contention that appellant forfeited his objection to the definition
proffered by the prosecutor.

                                              3
taking” of property that is “in the possession of another” person. Both require that the
taking be from the “person or immediate presence” of the person. Both are
“accomplished by means of force or fear.” ’ ” (People v. Lopez (2003) 31 Cal.4th 1051,
1058–1059; see also People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131 (O’Neil).)
        Accordingly, we look to interpretations of the force requirement in the robbery
context in construing the requirement in the carjacking context. (See People v. Lopez
(2017) 8 Cal.App.5th 1230, 1234 (Lopez); see also People v. Lopez, supra, 31 Cal.4th at
pp. 1060–1061.) In People v. Anderson (2011) 51 Cal.4th 989, the California Supreme
Court, in concluding that “intent to cause the victim to experience force or fear” is not an
element of the offense of robbery, stated, “The law does require that the perpetrator exert
some quantum of force in excess of that ‘necessary to accomplish the mere seizing of the
property.’ ” (Id. at p. 995; quoting People v. Morales (1975) 49 Cal.App.3d 134, 139;
accord People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on another
ground in People v. Mosby (2004) 33 Cal.4th 353; see also People v. Wright (1996) 51
Cal.App.4th 818, 210 [“must be a quantum more than that which is needed merely to take
the property from the person of the victim”].) In People v. Burns (2009) 172 Cal.App.4th
1251, the Court of Appeal discussed the Morales formulation of the quantum of force
required for robbery, but also stated, “An accepted articulation of the rule is that ‘[a]ll the
force that is required to make the offense a robbery is such force as is actually sufficient
to overcome the victim’s resistance . . . .’ ” (Burns, at pp. 1258–1259 [citing several
older court of appeal decisions].) The Supreme Court in Anderson cited Burns as a case
in “accord” with Morales’ characterization of the force requirement. (Anderson, at p.
995.)
        We note that section 215, subdivision (a) does not define the degree of force
required to support a conviction for carjacking and the standard instruction on carjacking
(CALCRIM No. 1650) does not define the force requirement. We need not and do not
address whether the trial court was obligated upon request to supplement the instruction
to define the degree of force required to support a conviction. (See People v. Anderson
(1966) 64 Cal.2d 633, 640 [“The terms ‘force’ and ‘fear’ as used in the definition of the


                                               4
crime of robbery have no technical meaning peculiar to the law and must be presumed to
be within the understanding of jurors.”]; People v. Sullivan (2007) 151 Cal.App.4th 524,
544 [“The requirement of use of force or fear has no technical meaning which must be
explained to jurors, but rather the terms articulated in the [robbery] statute have
established common meaning.”].)
       Appellant makes two arguments on appeal. First, he contends that, by instructing
the jury that force sufficient to overcome the victim’s resistance was enough, the trial
court permitted the jury to convict him of carjacking without finding he used more force
than necessary to seize the car he drove out of the dealership’s service garage. Appellant
reasons that the Burns formulation of the force requirement is an invalid theory of
carjacking because the force of a moving vehicle will always be sufficient to overcome a
victim’s resistance, even if the driver in no way alters his manner of driving in order to
retain possession of the car. Thus, appellant argues, a perpetrator may use no more force
than required to take a car but still overcome a victim’s resistance. In contrast, a
perpetrator of robbery confronted with resistance from a victim will typically need to
apply some additional force by, for example, pulling harder to obtain a purse or pushing
the victim.
       In Lopez, the Second District relied on similar reasoning but reached a conclusion
opposite from that which appellant proposes: Lopez concluded the Burns formulation of
the force requirement is the proper formulation in the carjacking context. (Lopez, supra,
8 Cal.App.5th at pp. 1236–1237.) In that case, the defendant, while the victim was
moving a shopping cart out of a parking space, entered the driver’s seat of the victim’s
car and started to back the car up. (Id. at pp. 1232–1233.) The defendant continued to
back up despite the pleading of the victim, who was banging on the window and holding
onto a door handle. (Id. at p. 1233.) The victim testified the defendant reversed the car
quickly, causing the car’s tires to squeal, and then sped away. (Ibid.) On appeal, the
defendant claimed insufficient evidence supported the carjacking conviction. (Ibid.) The
Court of Appeal disagreed, pointing to the evidence the defendant drove “faster than
necessary simply to move the vehicle” and, thus, “accomplish[ed] the taking with more


                                              5
force than was necessary to take the property.” (Id. at p. 1236.) The court also
concluded the evidence supported the carjacking conviction “[e]ven absent evidence of
fast driving.” (Ibid.) The Second District observed, as appellant also observes in the
present case, that the amount of force required “to lift the property and carry it off” in a
carjacking may be identical whether a victim resists or not. (Ibid.; see also ibid. [“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.”].)
Lopez concluded the Burns formulation—under which “a victim’s physical resistance
will convert a theft into a robbery, regardless of the amount of force involved”—is the
“more appropriate” rule in carjacking cases. (Lopez, at pp. 1236–1237.) In reaching that
conclusion, the court emphasized the additional risk of harm presented to a victim where
a perpetrator overcomes a victim’s resistance. (Id. at p. 1237.) The court ultimately held
“that a 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.” (Ibid.)
       We agree with the holding in Lopez. The facts in the present case are different in
one significant respect because in Lopez there was evidence the defendant drove fast,
causing the vehicle’s tires to squeal, while there is no evidence appellant drove
“forcefully” in exiting the dealership garage. Nevertheless, the holding in Lopez literally
encompasses the present case, because appellant did “drive[] the vehicle while” Mr.
Ruiz-Maldonado “physically attempt[ed] to prevent the theft.” (Lopez, supra, 8
Cal.App.5th at p. 1237.) Thus, Lopez provides sufficient basis to reject appellant’s first
contention: Appellant contends the trial court erred in permitting the jury to convict him
of carjacking without finding he used the quantum of force required by the Morales
formulation (more force than necessary to seize the property), but Lopez holds a finding
the perpetrator overcame the victim’s resistance is sufficient to support a carjacking
conviction.
       Second, appellant contends that, as a matter of law, the evidence in the present
case was inadequate to support a conviction under the Morales formulation of the force


                                              6
requirement.3 The reasoning in Lopez appears to support this contention. As we
understand the decision, Lopez takes the position the Morales formulation is
inappropriate in the carjacking context because often the only force applied will be the
momentum of the car. (Lopez, supra, 8 Cal.App.5th at p. 1236.) Lopez appears to
assume that a perpetrator who peacefully seized a car and then overcame the resistance of
a victim by driving off at a normal rate of speed would not be guilty of carjacking under
the Morales formulation of the force requirement. To the extent the decision reflects that
understanding, we disagree.
       “ ‘The taking element of robbery has two necessary elements, gaining possession
of the victim’s property and asporting or carrying away the loot.’ ” (People v. Hill (1998)
17 Cal.4th 800, 852 (Hill).) A theft becomes a robbery if the property of another was
“peacefully acquired, but force or fear was used” in carrying the property away.
(Anderson, supra, 51 Cal.4th at p. 995; see also ibid. [citing cases supporting the
proposition that “the requisite forcible act may be an act committed after the initial taking
if it is motivated by the intent to retain the property”].)4 The same principle applies in the
carjacking context: “Just as a ‘mere theft becomes robbery if the perpetrator, having
gained possession of the property without use of force or fear, resorts to force or fear
while carrying away the loot’ [citation], so mere vehicle 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.” (O’Neil, supra, 56
Cal.App.4th at p. 1131.) In the present case, appellant’s seizure of the car—climbing into


3
  Because the California Supreme Court in Anderson approved the Morales formulation
in robbery cases, we assume for purposes of the present decision that any definition of the
force requirement included in jury instructions must not permit a jury to convict a
defendant of carjacking absent use of force in excess of that necessary to seize the
vehicle. As explained herein, however, we conclude the Burns formulation of the force
requirement encompasses the Morales test.
4
  “To satisfy the asportation requirement for robbery, ‘no great movement is required,
and it is not necessary that the property be taken out of the physical presence of the
victim.’ [Citation.] ‘[S]light movement’ is enough to satisfy the asportation
requirement.” (Hill, supra, 17 Cal.4th at p. 852.)

                                              7
the driver’s seat and starting the car with the stolen fob—was peaceful. However, once
Mr. Ruiz-Maldonado resisted the theft by telling appellant to stop, banging on the trunk,
and opening the driver’s door, the movement of the car was actual force applied by
appellant to overcome the victim’s resistance. This was force in excess of that
“ ‘necessary to accomplish the mere seizing of the property.’ ” (Anderson, supra, 51
Cal.4th at p. 995.) Appellant fails to explain why the fact that a perpetrator in appellant’s
circumstances will almost always succeed in overcoming a victim’s resistance means that
such force may not be considered force in excess of that necessary to seize the car.
Appellate courts in other states that have considered similar applications of force (albeit
in the context of robbery charges) have not hesitated in treating the movement of a car as
an application of force like any other. (See People v. Rivera (N.Y.App.Div. 2007) 42
A.D.3d 587, 589 [“Using a vehicle to, in essence, push a victim away is analogous to
using physical force in a one-on-one confrontation to overcome resistance to the stealing
of property.”]; State v. Hawkins (Fla.Dist.Ct.App. 2001) 790 So.2d 492, 495 [“We
believe that the jury reasonably found that [the defendant’s] act of driving the truck,
while [the victim] was hanging onto the side resisting the theft, was an act of force
intended, in part, to overcome resistance to the taking.”].)
       In his opening brief, appellant characterizes Anderson as requiring force in excess
of that required to “take” the property and appears to suggest that to support a carjacking
conviction in the present case the force applied must have been in excess of that required
to drive the car out of the dealership’s service garage. The Lopez decision also appears to
reflect the same understanding of Anderson. (Lopez, supra, 8 Cal.App.5th at p. 1236.)
However, Anderson and the other cases cited above refer to the “ ‘mere seizing of the
property’ ”; the cases do not state the force applied must be in excess of that required to
escape with the property. (See, e.g., Anderson, supra, 51 Cal.4th at p. 995; Morales,
supra, 49 Cal.App.3d at p. 139.)5 As we understand the Burns formulation, any force

5
 Anderson does state in discussing the force element, “defendant drove Pamela’s car
with more force than necessary to move it to a place of safety.” (Anderson, supra, 51
Cal.4th at p. 995; see also Lopez, supra, 8 Cal.App.5th at p. 1236.) However, we do not

                                              8
sufficient to overcome a victim’s resistance will necessarily be more force than required
to seize the property. That is, if a victim resists during the initial seizure, the force
applied is necessarily more than required to seize the property absent resistance; and, if a
victim does not resist at the time of seizure, force applied to overcome subsequent
resistance is force in excess of that required to effect the initial seizure. Accordingly, the
Burns formulation encompasses the Morales formulation, and the trial court’s instruction
did not permit the jury to convict without at least an implied finding that appellant used
more force than necessary to accomplish the mere seizing of the vehicle. And, despite
appellant’s argument to the contrary, the evidence in this case is sufficient to support that
finding.
       In appellant’s reply brief, he appears to concede that force used to retain control of
a vehicle after an initial seizure may be sufficient to sustain a carjacking conviction, but
he argues the force cannot be the movement of the car itself. This argument reflects a
misunderstanding of the law as it applies to our facts. Appellant seized the vehicle when
he gained control of it by using the stolen fob to start it. (See People v. Duran (2001) 88
Cal.App.4th 1371, 1377 [“ ‘ “A taking occurs when the offender secures dominion over
the property while a carrying away requires some slight movement of the property.” ’ ”].)
The subsequent movement of the car provided evidence the jury could rely on to convict
him under Morales, which requires only force in excess of that required to seize the
vehicle. Appellant also argues a formulation of the force requirement permitting a
conviction based on the force applied by the momentum of the car alone is “absurd”
because it transforms an auto theft offense “into a carjacking . . . regardless of the
perpetrator’s actions, intentionally or accidentally, that would constitute additional

understand that to mean the “ ‘mere seizing of the property’ ” (Anderson, at p. 995)
includes the entire duration of the robbery, such that the force applied must be in excess
of that required to both seize the stolen property and transport it to a place of safety. The
cases Anderson cites, Morales and Burns, are purse snatching cases where the “seizure”
is plainly the perpetrator’s initial act of taking possession of the victim’s property.
(Morales, supra, 49 Cal.App.3d at p. 139; Burns, supra, 172 Cal.App.4th at p. 1259; see
also People v. Church (1897) 116 Cal. 300, 303 [“Grabbing or snatching property from
the hand has often been held to be grand larceny, and not robbery.”].)

                                               9
force.” However, in Anderson, the Supreme Court held a robbery conviction does not
require a showing that the defendant’s “act of force or intimidation was motivated by an
intent to apply force against the victim or to cause the victim to experience fear.”
(Anderson, supra, 51 Cal.4th at p. 995.) That is, the willful application of force in
effecting an escape is key, rather than the perpetrator’s intent to apply force against a
victim. Furthermore, a perpetrator confronted by a victim’s resistance always has the
option of abandoning the theft. Thus, a perpetrator who decides to continue to drive
away, with the application of force inherent in doing so, creates an additional risk of
harm to a victim. Imposing additional punishment on such a person is not absurd. (See
Lopez, supra, 8 Cal.App.5th at p. 9.)
                                        DISPOSITION
       The judgment is affirmed.




                                             10
                     SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A147910)




                11
Superior Court of Solano County, No. VCR223074, Hon. James Moelk, Judge.


Jonathan Soglin and Kevin King, under appointment by the Court of Appeal, for
Defendant and Appellant.


Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce M. Slavin and
Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.




                                          12
