Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF144491. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Joseph Eleuterio Ram contends that he did not take the victim’s vehicle from her immediate presence; thus, there was insufficient evidence to support his carjacking (Pen. Code, § 215) conviction. We affirm.
Undesignated statutory references are to the Penal Code.
I. PROCEDURAL BACKGROUND
A jury convicted defendant of forcible rape (§ 261, subd. (a)(2); count 1), attempted forcible sodomy (§§ 664, 286, subd. (c)(2); count 2), first degree burglary (§§ 459, 460; count 3), carjacking (§ 215; count 4), first degree robbery (§§ 211, 212.5, subd. (a); count 5), and battery (§ 242; lesser included offense of count 6). The jury also found that the count 1 forcible rape was committed during the commission of a burglary with the intent of committing a violent sex offense. (§ 667.61, subd. (d)(4).) The trial court found that defendant had a prior conviction that constituted both a serious felony prior (§ 667, subd (a)) and a strike prior (§ 667, subds. (c) & (e)).
For the count 1 forcible rape, defendant was sentenced to an indeterminate term of 25 years to life (due to the § 667.61 specified sex offense enhancement), doubled due to the strike, for a total indeterminate sentence of 50 years to life. An 18-year determinate prison term was imposed for the count 4 carjacking, based upon the upper term of nine years being doubled due to the strike. For the count 2 attempted sodomy, the trial court imposed two years consecutive, based upon one-third the midterm being doubled. For the count 3 burglary and the count 5 robbery, the trial court imposed the midterm and then stayed the sentences pursuant to section 654’s prohibition on multiple punishment for the same act. For the count 6 battery, defendant was sentenced to six months, which was satisfied by time already served. Lastly, the trial court imposed five years consecutive for the serious felony prior enhancement. Thus, in total, defendant was sentenced to a 25-year determinate sentence plus a 50-year-to-life indeterminate sentence.
We recite only the facts relevant to the carjacking conviction.
The victim lived by herself in a one-bedroom apartment. Defendant had previously resided with the victim’s daughter in another apartment in the same complex.
After going to sleep on June 9, 2008, the victim awoke because defendant was on top of her. The victim tried to push defendant; he told her not to move, put socks in her mouth, put one hand on her neck, and said not to say or do anything or he would hurt her. Defendant then raped the victim and attempted to sodomize her. Defendant then tied the victim’s hands behind her back and asked her if she had money or jewelry. She said, “I don’t have money, ’ and “Just take whatever you want and don’t hurt me.” Defendant took some items and went through the victim’s purse before asking her if she had a car. She said yes, and he asked where the keys were. The victim referred him to the kitchen table. He asked what the color of the car was, and the victim told him it was white. He then said, “Well, you better not be lying to me. I’m going to go and try the key in every car that was there parked [sic], and if you’re lying to me, I’m going to come back and I’m going to finish you....” Defendant left; the victim waited on the bed with her hands tied. She was afraid that defendant was “right there just waiting for [her] to do something so he [could] do something to [her].” After five minutes, she untied herself and called 911.
Before the victim went to sleep, her car had been parked in her assigned spot. Her assigned spot was on the side of the apartments, second in the row. When she returned home from the hospital and talking to the police, her car was gone. Defendant admitted to a police detective that he had stolen the car.
III. DISCUSSION
Defendant contends that he did not take the victim’s vehicle from her immediate presence and, thus, there is insufficient evidence to support his conviction. The People contend defendant is construing the immediate presence requirement too narrowly. Because the immediate presence requirement is not as narrow as contended by defendant, we hold that the evidence was sufficient.
“ ‘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 vehicle is within a person’s immediate presence for purposes of carjacking if it is sufficiently within her control so that she could retain possession of it if not prevented by force or fear. (People v. Medina (1995) 39 Cal.App.4th 643, 648 (Medina); CALCRIM No. 1650.) It is not necessary that the victim be physically present in the vehicle when the confrontation occurs. (Medina, at p. 650.)
In People v. Hoard (2002) 103 Cal.App.4th 599 [Fourth Dist., Div. Two] (Hoard), the defendant entered a jewelry store and ordered two employees to give him the keys to the jewelry cases and to the car belonging to one of the employees. (Id. at p. 602.) The employees complied and were then directed into a back room and bound. (Ibid.) The defendant took jewelry from the cases and the car belonging to one of the employees. (Ibid.) Relying on Medina, this court affirmed the defendant’s carjacking conviction by explaining: “Although [the victim] was not physically present in the parking lot when [the defendant] 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.” (Id. at pp. 609.)
Defendant contends our holding in Hoard goes too far by equating the forcible taking of keys, followed by the taking of a vehicle, as always being tantamount to taking a vehicle by force from the immediate presence of the possessor. However, a defendant who uses force or fear in the immediate presence of a victim to secure keys and preclude interference with the taking of a nearby vehicle has taken the vehicle from the immediate presence of the victim. This is so even if the possessor of the vehicle is not immediately adjacent to the vehicle but is close enough that they could have asserted their control over the vehicle if they had not been compelled into compliance by force or fear. (See Hoard, supra, 103 Cal.App.4th at pp. 608-609; cf. People v. Coleman (2007) 146 Cal.App.4th 1363, 1365-1366 [reversing carjacking conviction where victim had access to her employer’s keys but not constructive possession of the employer’s personal vehicle that had been parked outside her office].)
Defendant also contends that Hoard ignores that the carjacking statute was enacted to address the enhanced vulnerability and harm inherent in a carjacking and that his actions did not enhance the risk of harm to the victim beyond a second degree robbery. However, “the legislative history demonstrates that carjacking was made a separate offense because of perceived difficulties with obtaining convictions under the robbery statute. [Citation.] In addition, because of the potentially violent nature of the taking and growing frequency of the crime, the Legislature made the punishment for carjacking greater than that for second degree robbery. [Citations.]” (People v. Lopez (2003) 31 Cal.4th 1051, 1057-1058.) Thus, the carjacking statute was not enacted to address a different potential for violence, it was enacted because “ ‘many carjackings cannot be charged as robbery because it is difficult to prove the intent required of a robbery offense (to permanently deprive one of the car).’ ” (Id. at p. 1057.) Furthermore, the enhanced risk of harm that carjacking addresses is not in comparison to robbery but in comparison to a vehicle theft without a confrontation. (Ibid. [“ ‘If all the thief wanted was the car, it would be simpler to hot-wire the automobile without running the risk of confronting the driver’ ”].)
Defendant used force and fear to take the victim’s car keys and then took her car from her assigned parking spot right next to the side of the apartments. Accordingly, there is sufficient evidence that defendant took a vehicle from the immediate presence of the victim. (Hoard, supra, 103 Cal.App.4th at pp. 608-609.)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.