Opinion
A152268
03-21-2018
In re G.I., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.I., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J41209)
G.I. (Minor) appeals an order entered after the juvenile court found he committed residential robbery, carjacking, and residential burglary. He contends the evidence does not support the carjacking finding. We shall affirm the order.
I. BACKGROUND
A juvenile wardship petition (Welf. & Inst. Code, § 602) was filed in July 2017 in El Dorado County alleging Minor committed residential robbery (Pen. Code, § 211) with a special allegation of robbery in concert (§ 213, subd. (a)(1)(A), count one); carjacking (§ 215, subd. (a), count two); and first degree residential robbery (§ 459, count three). All three counts included serious felony allegations. (§§ 1192.7, subd. (c) & 667.5, subd. (c).) The juvenile court found the allegations of the petition true and transferred the matter to the Solano County Juvenile Court for disposition. The juvenile court entered its dispositional order on August 17, 2017, continuing Minor as a ward of the court and placing him on probation in his mother's custody. This appeal ensued.
All undesignated statutory references are to the Penal Code.
Minor had been a ward of the court since 2014.
The notice of appeal states it is from the July 26, 2017 jurisdictional order. A jurisdictional order is not independently appealable; rather, the propriety of the adjudication order is subject to review from the order made after the disposition hearing. (In re Z.A. (2012) 207 Cal.App.4th 1401, 1404-1405, fn. 2.) We shall construe the August 30, 2017 notice of appeal as being from the August 17 dispositional order. (Ibid.)
The sole witness at the jurisdictional hearing was Jorge Orozco Quirarte, a live-in group counselor at the recently opened Tahoe Turning Point group home. Juveniles who lived at the group home were not allowed in the staff's living quarters. The juveniles' rooms were upstairs, and the staff area was downstairs. A "company van," which was used to transport the group home's clients, was parked in the driveway in front of the house. Orozco did not own the van. Orozco had the key to the van on a key ring that also contained the keys to the group home and his own personal keys.
On the evening in question, Orozco was in the kitchen. He was the only counselor spending the night at the group home. His key ring was in his pocket. Minor came downstairs with two other juveniles, dressed warmly and carrying bags. They said that they wanted to leave the facility and that they wanted to use Orozco's keys to the van. Orozco told them they could not take the van. He testified, "I believe what I said was I will lose my job. I can't just give you guys my keys." One of the other minors picked up a knife that Orozco had been using and walked toward him, making thrusting motions. Orozco threw his hands up, and the keys flew out of his hands. Minor picked the keys up. The youths grabbed the bags and ran out the front door. Orozco saw the van "take off."
II. DISCUSSION
Minor contends the evidence does not support a finding that he committed carjacking. In reviewing the sufficiency of the evidence, we are bound by the well-established rule that we " 'must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Section 215, subdivision (a) defines carjacking 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." Minor contends his actions did not meet this definition because Orozco was not within physical proximity to the van when the keys were taken, the keys were not his own, and there was no evidence he was a driver of the van.
We are guided by our Supreme Court's decision in People v. Johnson (2015) 60 Cal.4th 966 (Johnson). The evidence there indicated the victim of the defendant's crimes was baking in her kitchen when the defendant entered her home, killed her, and took her car keys from either her purse or the kitchen counter. He used the keys to take her car, which was in her garage, separated from the kitchen by a breezeway. (Id. at p. 990.) Our high court considered whether in doing so, the defendant took the car from the victim's "person or immediate presence" for purposes of section 215, subdivision (a), and concluded that a jury could reasonably find he did. As the court explained, "something is in a person's 'immediate presence' if it is ' " 'so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.' " ' [Citation.]" (Id. at p. 989.) On the facts before it, the jury in Johnson could reasonably find that the car keys were within the victim's immediate reach and that she would have retained possession of her keys and car if the defendant had not prevented her. (Id. at p. 990.) The court explained: "This might not be a classic carjacking such as when a perpetrator approaches a car stopped at a red light and, at gunpoint, forces the driver and any passengers out, then drives the car away. But all the statutory elements of carjacking are met." (Ibid.)
An application of this rule is found in People v. Hoard (2002) 103 Cal.App.4th 599 (Hoard), cited with approval in Johnson. (Johnson, supra, 60 Cal.4th at p. 990.) In Hoard, the defendant entered a jewelry store, displayed a gun, and demanded the keys to the jewelry cases and an employee's car. The defendant left, and the employee later found that her car, which had been in the parking lot, was gone. (Hoard, at pp. 602, 608.) The appellate court upheld the defendant's conviction of carjacking. In doing so, it rejected his contention that he did not take the car from the victim's person or immediate presence. The court reasoned: "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; see also People v. Medina (1995) 39 Cal.App.4th 643, 650 (Medina) ["the victim need not actually be physically present in the vehicle when the confrontation occurs"]; People v. Gomez (2011) 192 Cal.App.4th 609, 623-625, disapproved on other grounds in People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9 [carjacking conviction upheld where defendant assaulted victim, then returned 10 to 20 minutes later to take truck parked in front of apartment while victim watched from apartment window].)
These cases make clear that the crime of carjacking does not require the victim to be personally present in or directly adjacent to a vehicle. Rather, the crime may occur when the keys are taken by force or fear and the vehicle is close enough that the victim could otherwise have retained control of the keys and vehicle. The evidence that Minor and his companions took the keys from Orozco's person at knifepoint and that the van was parked in the driveway outside the house is sufficient to support such a finding here.
Without analyzing the factual similarities of this case to Johnson, Minor relies upon People v. Coleman (2007) 146 Cal.App.4th 1363 (Coleman) to argue we should reverse the carjacking finding. In Coleman, the owner of a business parked his personal vehicle, a Chevrolet Silverado, in front of the shop, put his keys in the back work area, and left. (Coleman, at p. 1366.) The office manager had access to the keys that the owner and other employees hung in the back work area, but she was not responsible for keeping track of the keys or giving them back to the employees. (Ibid.) The defendant entered the shop and ordered the office manager at gunpoint to give him the keys to the Silverado. She got the keys from the back of the shop and gave them to him. (Ibid.) The appellate court reversed the defendant's carjacking conviction, because the office manager "was not within any physical proximity to the Silverado, 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 Silverado. These circumstances are simply too far removed from the type of conduct that section 215 was designed to address." (Id. at p. 1373.)
We are not persuaded the same result is appropriate here. Our high court in Johnson considered Coleman and distinguished it on the grounds that the victim in Johnson "owned the keys and the car, she was physically close to both, and the jury could have reasonably found she could have retained possession of both had defendant not killed her." (Johnson, supra, 60 Cal.4th at p. 991.) Coleman is similarly distinguishable here: Orozco had the key to the van in his pocket on a keychain with his personal keys, the van was in the driveway outside the house, and the juvenile court could reasonably conclude he would have retained possession of both if Minor and his companions had not taken the keys at knifepoint.
Minor points out, though, that the van did not belong to Orozco, and he argues Orozco was not in possession of it for purposes of section 215. However, in construing the analogous robbery statute (§ 211), our high court has made clear that ownership is not required to establish the element of possession, and " '[t]he theory of constructive possession [may] expand the concept of possession to include employees and others as robbery victims.' [Citation.]" (People v. Scott (2009) 45 Cal.4th 743, 749-750.) Here, there was evidence from which the juvenile court could reasonably infer Orozco was in possession of the van and was authorized to drive it. He kept the keys in a key ring in his pocket, along with his personal keys; he referred to the van key as "my keys to the company van"; the van was intended to transport residents of the group home; and Orozco was the only counselor on duty that evening.
Both Johnson and Medina relied on judicial interpretations of the robbery statute (§ 211) to construe the crime of carjacking. (Johnson, supra, 60 Cal.4th at p. 989; Medina, supra, 39 Cal.App.4th at p. 650.) The theory of constructive possession was in existence before 1993, when the Legislature enacted section 215. (Johnson, at p. 991; People v. Nguyen (2000) 24 Cal.4th 756, 761, citing People v. Miller (1977) 18 Cal.3d 873, 880 [security guard had constructive possession of property taken from store].)
The evidence is sufficient to support the juvenile court's finding that Minor committed carjacking.
III. DISPOSITION
The order appealed from is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------