Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. SA062453
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Talk, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ashley Price appeals a judgment following conviction of carjacking. (Pen. Code, § 215, subd. (a).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Price and Leilanie L. began dating in 2002 and had a child together. In January 2005, Price lived in Chicago, but visited Leilanie in Inglewood. During an argument, Price struck Leilanie five times. Leilanie telephoned for police assistance. Police Officer James Shaw responded to the call and forcibly arrested Price.
On May 31, 2006, Leilanie purchased a 1999 Saab automobile. Price signed the purchase and insurance documents as a cosigner, although he did not have employment, a source of income, or a driver's license. Leilanie provided financial information to the automobile dealership regarding her employment. Price drove the Saab from the car dealership because Leilanie was driving her mother's automobile. Leilanie thereafter drove the Saab and made the monthly payments to the finance company. Price did not have keys to the automobile.
On September 26, 2006, Leilanie was using the automobile keys to open the driver's door when Price approached her from behind and took the keys. Leilanie struggled with him and suffered bruises on her chest, neck, and leg. Price entered the automobile and drove away. Leilanie walked to a gas station and then called a taxi to return home. There she reported the incident to police officers.
Approximately a month later, Leilanie received information that authorities had impounded the automobile. She eventually forfeited it to the finance company because she could not afford the impound fees and parking tickets.
The trial court instructed with a modified version of CALCRIM No. 1650, regarding the elements of carjacking. The court instructed that "[i]t is not a defense to the crime of carjacking that a defendant is the part owner of the vehicle involved." The court relied upon People v. Cabrera (2007) 152 Cal.App.4th 695, 698, 701-703, holding that carjacking is not subject to the claim of right defense.
The jury convicted Price of carjacking and acquitted him of inflicting injury to a child's parent. (§§ 215, subd. (a) (count1), 273.5, subd. (a) (count 2).) The trial court sentenced him to a midterm sentence of five years and imposed a $200 restitution fine and a $200 parole revocation restitution fine. (§§ 1202.4, subd. (b), 1202.45.) It awarded Price 220 days of presentence custody credit.
Price appeals and contends that the trial court erred prejudicially by instructing that claim of right is not a defense to carjacking.
DISCUSSION
Price argues that claim of right is a defense to carjacking because the crime requires a "felonious taking." Section 215, subdivision (a) provides: "'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." He points out that claim of right is a defense to "felonious taking" in robbery. (People v. Lopez (2003) 31 Cal.4th 1051, 1060 ["When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent appears"]; People v. Tufunga (1999) 21 Cal.4th 935, 938-939.) Price asserts that People v. Cabrera, supra, 152 Cal.App.4th 695, concluding otherwise, is wrongly decided.
In Cabrera, defendant asserted that the trial court erred by precluding a claim of right defense to carjacking. (People v. Cabrera, supra, 152 Cal.App.4th 695, 701.) In rejecting that contention, the reviewing court relied upon the concurring opinion of Justice Werdegar in People v. Montoya (2004) 33 Cal.4th 1031, 1036-1038. The concurring opinion concluded that carjacking is a crime against possession rather than ownership and thus not subject to a claim of right defense. (The majority opinion in Montoya, at page 1035, footnote 3, did not consider this point, having resolved the matter on other grounds.)
We agree with the discussion in People v. Cabrera, supra, 152 Cal.App.4th 695, 701-703. Section 215, subdivision (a) uses the word "possession" three times. The crime of carjacking is committed against the possessor or passengers in a vehicle and not necessarily against the owner. (Cabrera, at p. 702.) The statute also punishes a temporary deprivation of possession. (Id. at p. 703.) "The fact that carjacking does not require proof of an intent to permanently deprive the victim of a motor vehicle buttresses Justice Werdegar's conclusion that carjacking is strictly a crime against possession rather than ownership." (Ibid.) For this reason, a claim of right defense does not apply.
Moreover, Price did not present sufficient evidence or reasonable inferences therefrom to support a claim of right defense. (People v. Mentch (2008) 45 Cal.4th 274, 287-288 [defendant must present sufficient evidence to support defense].) Although he signed various documents at the time Leilanie purchased the Saab automobile, Price had no income, was not employed, and had no driver's license. He made no payments on the automobile loan and never had an automobile key. When he took the keys from Leilanie, he struggled with her without voicing any demand based on a claim of right. There is no error.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J., Katherine Mader, Judge