Filed 8/18/16 P. v. Franco CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B267395
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. PA079946)

         v.

ALBERT FRANCO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, David
Gelfound, Judge. Affirmed.

         Julie Schumer, under appointment by the Court of Appeal, for Defendant
and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and
Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
      Appellant Albert Franco was convicted of carjacking, robbery, and assault
with a deadly weapon. On appeal, he contends his conviction for carjacking fails
for want of sufficient evidence. We reject his contention and affirm.



                   RELEVANT PROCEDURAL HISTORY
      On May 2, 2014, an information was filed charging appellant in counts 1
and 4 with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), in count
2 with carjacking (Pen. Code, § 215, subd. (a)), in count 3 with second degree
robbery (Pen. Code, § 211), and in count 5 with assault with a firearm (Pen. Code,
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§ 245, subd. (a)(2)). Accompanying the charges were allegations that appellant
had suffered a conviction for robbery (§ 211) in 1998 constituting a felony
conviction for purposes of the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and a serious felony conviction (§ 667, subd. (a)(1)).
Appellant pleaded not guilty to the charges and denied the special allegations.
      A jury found appellant guilty as charged in counts 1 through 4, and
acquitted him on count 5. The jury further found that appellant had suffered the
1998 robbery conviction. The trial court sentenced him to a total term of 25 years.


                          FACTUAL BACKGROUND
      A. Prosecution Evidence
      The prosecution’s principal witnesses were Krystal Torres and Anthony
Maldonado, the victims of the offenses charged against appellant. Their
testimony, coupled with other evidence, supported the following version of the
underlying events: In 2011 or 2012, Torres and Maldonado met appellant through

1
      All statutory citations are to the Penal Code.

                                         2
their friend Cassandra Lopez, and briefly rented a room in his house in Arleta.
Later, in early 2014, they encountered appellant in a liquor store. Appellant
offered to prepare their taxes for a fee. They agreed. At some point, Torres
permitted appellant to borrow her car for several hours.
      On February 21, 2014, Torres and Maldonado drove in her car to visit their
friend Gabriel, who lived on Rincon Avenue in San Fernando. Because Torres
and Maldonado were then homeless, the car contained their personal belongings.
They parked in front of Gabriel’s house. While Torres, Maldonado, and Gabriel
socialized, Lopez arrived in an SUV and offered them a ride to a store so that they
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could buy cigarettes. They accepted the offer and entered Lopez’s SUV.
      Thereafter, Lopez parked the SUV in a cul-de-sac down the street from
Gabriel’s house. A man walked up to the SUV and told Maldonado that appellant
was looking for him. Torres and Maldonado left the SUV and saw appellant in the
cul-de-sac. Lopez and Gabriel then drove away.
      Torres and Maldonado approached appellant, who said that he wanted to
pick up their “check” or “taxes,” and demanded their i.d.’s and social security
numbers, as well as the keys and pink slip to Torres’s car. When Torres refused to
relinquish the car keys, appellant jabbed her nose with what she described as a
“sharp object,” while the man who initially hailed Maldonado attacked him with a
bat. The man knocked Maldonado to the ground with the bat, which broke.

2
       Torres and Maldonado offered different accounts of what occurred while
they drove with Lopez. Torres testified that they “w[e]nt for a ride to the store.”
Maldonado testified that Lopez invited Torres and himself to smoke some “meth”
during the drive. Before they could do so, Lopez received a phone call and drove
to the cul-de-sac in an apparent effort to meet someone, in lieu of going to the
store.



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Frightened, Torres gave her car keys to appellant, who ran toward her car,
accompanied by his companion. Torres and Maldonado saw them enter the car
and drive away.
      Several days after the incident, investigating officers told Torres and
Maldonado that the car had been found and was located in a tow yard. Upon
arriving there, they saw that the car had been looted and burned.
      Los Angeles Police Department Officer Bill Coleman, who investigated the
incident, described the distance from the cul-de-sac to Gabriel’s house as
“probably a block.”


      B. Defense Evidence
      Robert Royce, appellant’s investigator, estimated that the pertinent cul-de-
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sac is approximately 400 yards from Gabriel’s house.


                                   DISCUSSION
      Appellant contends his conviction for carjacking fails for want of
substantial evidence. Under section 215, subdivision (a), 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

3
      Appellant also called Torres and Maldonado as witnesses. Torres denied
that she, Maldonado, and Lopez went to the cul-de-sac in order to buy “meth,” and
Maldonado stated that he drove Torres’s car when they visited Gabriel.
Additionally, appellant submitted testimony from Dannette Cortez and Robert
Torres, Gabriel’s sister and brother. Both stated that they had no percipient
knowledge of the underlying incident.

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of his or her possession, accomplished by means of force or fear.” Appellant
argues that there is insufficient evidence he took Torres’s car from her “person or
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immediate presence.” As explained below, we disagree.
      In People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson), our Supreme
Court explained that “the ‘Legislature modeled the carjacking statute on the
robbery statute,’ and some of the language in the carjacking statute (§ 215) tracks
that of the robbery statute (§ 211). [Citation.] Specifically, both section 211 and
section 215 require a taking from the ‘person or immediate presence’ of the
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person. [Citations.]” (Quoting People v. Lopez (2003) 31 Cal.4th 1051, 1059.)
Under the robbery statute, that requirement is subject to the definition of
“immediate presence” set forth in People v. Hayes (1990) 52 Cal.3d 577, 626-627
(Hayes), namely, “that something is within a person’s “immediate presence’ if it is
‘“‘so within his reach, inspection, observation or control, that he could, if not


4
       Generally, “‘[t]he proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a rational trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.] On
appeal, we must view the evidence in the light most favorable to the People and
must presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure
the evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination depends.
[Citation.] Thus, if 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. [Citations.]’ [Citation.]” (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
5
       Under section 211, 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.”

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overcome by violence or prevented by fear, retain his possession of it.’”’”
(Johnson, supra, 60 Cal.4th at p. 989.) That definition also governs the analogous
requirement in the carjacking statute. (Ibid.) Thus, “‘[a] vehicle is within a
person’s immediate presence for purposes of carjacking if it is sufficiently within
his control so that he could retain possession of it if not prevented by force or
fear.’” (Ibid., quoting People v. Gomez (2011) 192 Cal.App.4th 609, 623,
disapproved on another ground in People v. Elizalde (2015) 61 Cal.4th 523, 538,
fn. 9.)
          Under the Hayes definition, a carjacking may occur even though the victim
is not inside the pertinent vehicle or closely adjacent to it. (Johnson, supra, 60
Cal.4th at p. 990.) In Johnson, the defendant was charged with murder,
carjacking, and other crimes. (Id. at p. 973.) At trial, the evidence showed that he
entered the victim’s house while she was in or near the kitchen, killed her,
obtained her car keys, and took her car, which was parked in a garage separated
from the kitchen by a breezeway. (Id. at p. 972.) Following the defendant’s
conviction for murder and carjacking, he contended there was insufficient
evidence he took the car from the victim’s person or immediate presence. (Id. at
p. 988.) In rejecting that contention, the court noted that “[n]ormally, in order to
accomplish a carjacking, the perpetrator must take not only the car itself but the
keys to the car.” (Id. at p. 990.) Applying the Hayes definition, the court
determined that “the jury could reasonably find that the car keys were within the
victim’s immediate reach at the time defendant arrived at her door, and defendant
took the keys from where she had been. [The] evidence supports a jury finding
that the victim could have retained possession of her keys and car had defendant
not prevented her from doing so by force or fear . . . .” (Id. at p. 990.)




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      In so concluding, the court pointed with approval to People v. Hoard (2002)
103 Cal.App.4th 599. There, the defendant went into a jewelry store, displayed a
gun, and secured an employee’s car keys. (Id. at p. 602.) After confining the
employees in a back room, he removed jewelry from the store’s display cases and
fled in the employee’s car, which was parked outside the store in a parking lot.
(Id. at pp. 602, 608.) The appellate court affirmed the defendant’s conviction for
carjacking, stating: “Defendant took possession of [the employee’s] car by
threatening her and demanding her car keys. Although she was not physically
present in the parking lot when he drove the car away, she had been forced to
relinquish her car keys. Otherwise, she could have kept possession and control of
the keys and her car. Although not the ‘classic’ carjacking scenario, it was a
carjacking all the same.” (Id. at p. 609, fn. omitted.)
      Here, the trial evidence showed that after Torres and Maldonado parked
their car in front of Gabriel’s house, Lopez drove them to a cul-de-sac down the
street, where appellant and his companion obtained Torres’s car keys by force.
Torres’s car was visible from the cul-de-sac, as both Torres and Maldonado saw
appellant and his companion run to the car and drive away in it. The record
discloses two estimates of the distance from the cul-de-sac to the car. Los Angeles
Police Department Officer Coleman described it as “probably a block.”
Appellant’s investigator Royce estimated it to be approximately 400 yards.
      Appellant contends the distance from the cul-de-sac to Torres’s parked car
was “far in excess of distances that have been found to be in the range of the
‘immediate presence’ of a victim.” We disagree. In People v. Webster (1991) 54
Cal.3d 411, 440 (Webster), the defendant and his accomplices invited the victim to
visit their campsite by a river and drove with him to a public parking lot, where he
parked his car. (Id. at pp. 440-441.) They then escorted the victim to the


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campsite, which was approximately a quarter mile from the parking lot. (Id. at
pp. 424, 440.) As they neared the campsite, they killed the victim, and later
appropriated his car. (Ibid.) On appeal, the defendant challenged his robbery
conviction, contending the car was not taken from the victim’s immediate
presence because it was a “significant distance” from the assault. (Id. at p. 439.)
Our Supreme Court rejected that contention, concluding that “[t]he distance
between [the victim’s] auto and the murder scene was not so great as to violate
[the Hayes definition] as a matter of law. . . . [The victim] and the three other men
. . . walked the relatively short distance to the riverbank campsite -- a mere quarter
of a mile by [the] defendant’s own calculation. Like [the victim], the robbers were
on foot, and they were no closer to the car at the moment they assaulted [the
victim] than was [the victim] himself. There was no evidence that [the victim] was
too far away to perceive and resist an attempt to seize the vehicle.” (Id. at p. 440.)
      That rationale also applies here. Even assuming the jury credited Royce’s
estimate of the distance from the cul-de-sac to Torres’s car, his testimony
established that it was equivalent to the distance at issue in Webster. Like Torres
and Maldonado, appellant and his companion were on foot, and all four were
equidistant from the car. Furthermore, Torres and Maldonado could see the car,
and were capable of exercising control over it. The evidence thus establishes that
the car was “‘“‘so within’”’” Torres’s “‘“‘reach, inspection, observation or control,
that [she] could, if not overcome by violence or prevented by fear, retain [her]
possession of it,’”’” for purposes of the Hayes definition (Johnson, supra, 60
Cal.4th at p. 989). As that definition governs the carjacking statute, there is
sufficient evidence appellant took Torres’s car from her “person or immediate
presence” (§ 215, subd. (a)).




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      People v. Coleman (2007) 146 Cal.App.4th 1363, upon which appellant
relies, is distinguishable. There, a business owner drove his personal truck to his
shop, put the keys in a work area, and departed in another vehicle. (Id. at p. 1366.)
The defendant entered the shop, pointed a gun at an employee, and demanded the
keys to the owner’s truck. (Ibid.) Although the employee had access to the keys,
she was not responsible for keeping track of them. (Ibid.) The employee gave the
keys to the defendant, who drove away in the owner’s truck. (Ibid.) Reversing the
defendant’s conviction for carjacking, the appellate court concluded that the truck
had not been taken from the immediate presence of an owner or passenger, stating
that the employee “was not within any physical proximity to the [truck], the keys
she relinquished were not her own, and there was no evidence that she had ever
been or would be a driver of or passenger in the [truck].” (Id. at p. 1373.) In
contrast, as discussed above, Torres relinquished the keys to her own car, and
otherwise satisfied the requirements for “immediate presence” under the Hayes
definition. In sum, the record discloses evidence sufficient to support appellant’s
conviction for carjacking.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          MANELLA, J.

We concur:




WILLHITE, Acting P. J.




COLLINS, J.




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